Bill Text: VA SB446 | 2024 | Regular Session | Prefiled
Bill Title: Environmental Resources, Board of; created.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2024-01-23 - Continued to 2025 in Agriculture, Conservation and Natural Resources (15-Y 0-N) [SB446 Detail]
Download: Virginia-2024-SB446-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3705.7, 2.2-4006, 2.2-4007.07, 2.2-4013, 2.2-4014, 2.2-4015, 2.2-4021, 3.2-3602, 3.2-3937, 3.2-5633, 8.01-225, 10.1-404, 10.1-605, 10.1-651, 10.1-659, 10.1-1182, 10.1-1184.1, 10.1-1184.2, 10.1-1185, 10.1-1186, 10.1-1186.2, 10.1-1186.2:1, 10.1-1186.3, 10.1-1186.4, 10.1-1187.1, 10.1-1187.6, 10.1-1197.3, 10.1-1197.9, 10.1-1230, 10.1-1232, 10.1-1234, 10.1-1236, 10.1-1300, 10.1-1400, 10.1-1402.2, 10.1-1408.5, 10.1-1450, 10.1-1454.1, 10.1-1504, 10.1-2117, 10.1-2123, 10.1-2129, 10.1-2131, 10.1-2500, 15.2-924, 15.2-2111, 21-122.1, 28.2-638, 28.2-1100, 28.2-1205, 28.2-1302, 28.2-1403, 29.1-203, 29.1-213, 29.1-214, 32.1-163, 32.1-164, 32.1-176.7, 32.1-233, 36-99.6, 44-146.30, 45.2-1701.1, 45.2-1711, 46.2-1176, 46.2-1179.1, 46.2-1304.1, 54.1-505, 54.1-2300, 54.1-2301, 55.1-2417, 56-585.1, 56-586.1, 58.1-2289, 58.1-3660, 58.1-3664, 62.1-44.3, as it is currently effective and as it shall become effective, 62.1-44.14, 62.1-44.15, as it is currently effective and as it shall become effective, 62.1-44.15:6, 62.1-44.15:7, 62.1-44.15:24, as it is currently effective, 62.1-44.36, 62.1-44.115, 62.1-44.116, 62.1-67, 62.1-69, 62.1-69.25, 62.1-69.36, 62.1-69.45, 62.1-73, 62.1-85, 62.1-104, 62.1-105, 62.1-106, 62.1-107, 62.1-111, 62.1-218, 62.1-224, 62.1-234, 62.1-241.1, 62.1-241.12, 62.1-242, 62.1-243, 62.1-255, and 62.1-273 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 10.1-1183.1 as follows:
§2.2-3705.7. Exclusions to application of chapter; records of specific public bodies and certain other limited exclusions.
The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with §2.2-3704.01.
1. State income, business, and estate tax returns, personal property tax returns, and confidential records held pursuant to §58.1-3.
2. Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. However, no information that is otherwise open to inspection under this chapter shall be deemed excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to §2.2-106 or 2.2-107.
As used in this subdivision:
"Members of the General Assembly" means each member of the Senate of Virginia and the House of Delegates and their legislative aides when working on behalf of such member.
"Office of the Governor" means the Governor; the Governor's chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to §2.2-104.
"Working papers" means those records prepared by or for a public official identified in this subdivision for his personal or deliberative use.
3. Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed or accessed material or resources from a library and (b) the material or resources such patron borrowed or accessed or (ii) any library patron under 18 years of age. For the purposes of clause (ii), access shall not be denied to the parent, including a noncustodial parent, or guardian of such library patron.
4. Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program.
5. Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision.
6. Information furnished by a member of the General Assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under §30-110 or of formulating advisory opinions to members on standards of conduct, or both.
7. Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money charged or paid for such utility service.
8. Personal information, as defined in §2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to §36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to §36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to §15.2-2304 or 15.2-2305. However, access to one's own information shall not be denied.
9. Information regarding the siting of hazardous waste facilities, except as provided in §10.1-1441, if disclosure of such information would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions, and provisions of the siting agreement.
10. Information on the site-specific location of rare, threatened, endangered, or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This exclusion shall not apply to requests from the owner of the land upon which the resource is located.
11. Memoranda, graphics, video or audio tapes, production models, data, and information of a proprietary nature produced by or for or collected by or for the Virginia Lottery relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such information not been publicly released, published, copyrighted, or patented. Whether released, published, or copyrighted, all game-related information shall be subject to public disclosure under this chapter upon the first day of sales for the specific lottery game to which it pertains.
12. Information held by the Virginia Retirement System, acting pursuant to §51.1-124.30, or a local retirement system, acting pursuant to § 51.1-803, or by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for post-retirement benefits other than pensions, acting pursuant to Article 8 (§ 15.2-1544 et seq.) of Chapter 15 of Title 15.2, or by the board of visitors of the University of Virginia, acting pursuant to §23.1-2210, or by the board of visitors of The College of William and Mary in Virginia, acting pursuant to § 23.1-2803, or by the Virginia College Savings Plan, acting pursuant to § 23.1-704, relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, if disclosure of such information would (i) reveal confidential analyses prepared for the board of visitors of the University of Virginia, prepared for the board of visitors of The College of William and Mary in Virginia, prepared by the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan, or provided to the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan under a promise of confidentiality of the future value of such ownership interest or the future financial performance of the entity and (ii) have an adverse effect on the value of the investment to be acquired, held, or disposed of by the retirement system, a local finance board or board of trustees, the board of visitors of the University of Virginia, the board of visitors of The College of William and Mary in Virginia, or the Virginia College Savings Plan. Nothing in this subdivision shall be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested, or the present value of such investment.
13. Financial, medical, rehabilitative, and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§51.5-53 et seq.) of Title 51.5.
14. Information held by the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts, or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such information has not been publicly released, published, copyrighted, or patented. This exclusion shall also apply when such information is in the possession of Virginia Commonwealth University.
15. Information held by the Department of Environmental
Quality, the State Water Control Board, the State Air
Pollution Control Board, or the Virginia
Waste Management Board of
Environmental Resources relating to (i) active federal
environmental enforcement actions that are considered confidential under
federal law and (ii) enforcement strategies, including proposed sanctions for
enforcement actions. Upon request, such information shall be disclosed after a
proposed sanction resulting from the investigation has been proposed to the
director of the agency. This subdivision shall not be construed to prevent the
disclosure of information related to inspection reports, notices of violation,
and documents detailing the nature of any environmental contamination that may
have occurred or similar documents.
16. Information related to the operation of toll facilities that identifies an individual, vehicle, or travel itinerary, including vehicle identification data or vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use.
17. Information held by the Virginia Lottery pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed. If the value of the prize won by the winner exceeds $10 million, the information described in clause (ii) shall not be disclosed unless the winner consents in writing to such disclosure.
18. Information held by the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result.
19. Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Virginia Disposition of Unclaimed Property Act (§55.1-2500 et seq.) prepared by or for the State Treasurer or his agents or employees or persons employed to perform an audit or examination of holder records.
20. Information held by the Virginia Department of Emergency
Management or a local governing body relating to citizen emergency response
teams established pursuant to an ordinance of a local governing body that
reveal the name, address, including e-mail email address, telephone or
pager numbers, or operating schedule of an individual participant in the
program.
21. Information held by state or local park and recreation departments and local and regional park authorities concerning identifiable individuals under the age of 18 years. However, nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the federal Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For such information of persons who are emancipated, the right of access may be asserted by the subject thereof. Any parent or emancipated person who is the subject of the information may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such information for inspection and copying.
22. Information submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management that reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network.
23. Information held by the Judicial Inquiry and Review Commission made confidential by §17.1-913.
24. Information held by the Virginia Retirement System acting pursuant to §51.1-124.30, a local retirement system acting pursuant to § 51.1-803 (hereinafter collectively referred to as the retirement system), or the Virginia College Savings Plan, acting pursuant to §23.1-704 relating to:
a. Internal deliberations of or decisions by the retirement system or the Virginia College Savings Plan on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, if disclosure of such information would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan; and
b. Trade secrets provided by a private entity to the retirement system or the Virginia College Savings Plan if disclosure of such records would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan.
For the records specified in subdivision b to be excluded from the provisions of this chapter, the entity shall make a written request to the retirement system or the Virginia College Savings Plan:
(1) Invoking such exclusion prior to or upon submission of the data or other materials for which protection from disclosure is sought;
(2) Identifying with specificity the data or other materials for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The retirement system or the Virginia College Savings Plan shall determine whether the requested exclusion from disclosure meets the requirements set forth in subdivision b.
Nothing in this subdivision shall be construed to prevent the disclosure of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.
25. Information held by the Department of Corrections made confidential by former §53.1-233.
26. Information maintained by the Department of the Treasury or participants in the Local Government Investment Pool (§2.2-4600 et seq.) and required to be provided by such participants to the Department to establish accounts in accordance with §2.2-4602.
27. Personal information, as defined in §2.2-3801, contained in the Veterans Care Center Resident Trust Funds concerning residents or patients of the Department of Veterans Services Care Centers, except that access shall not be denied to the person who is the subject of the information.
28. Information maintained in connection with fundraising activities by the Veterans Services Foundation pursuant to §2.2-2716 that reveal the address, electronic mail address, facsimile or telephone number, social security number or other identification number appearing on a driver's license or other document issued under Chapter 3 (§46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, or credit card or bank account data of identifiable donors, except that access shall not be denied to the person who is the subject of the information. Nothing in this subdivision, however, shall be construed to prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor, unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. The exclusion provided by this subdivision shall not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the foundation for the performance of services or other work or (ii) the terms and conditions of such grants or contracts.
29. Information prepared for and utilized by the Commonwealth's Attorneys' Services Council in the training of state prosecutors or law-enforcement personnel, where such information is not otherwise available to the public and the disclosure of such information would reveal confidential strategies, methods, or procedures to be employed in law-enforcement activities or materials created for the investigation and prosecution of a criminal case.
30. Information provided to the Department of Aviation by other entities of the Commonwealth in connection with the operation of aircraft where the information would not be subject to disclosure by the entity providing the information. The entity providing the information to the Department of Aviation shall identify the specific information to be protected and the applicable provision of this chapter that excludes the information from mandatory disclosure.
31. Information created or maintained by or on the behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge made confidential by §17.1-100.
32. Information reflecting the substance of meetings in which (i) individual sexual assault cases are discussed by any sexual assault response team established pursuant to §15.2-1627.4, (ii) individual child abuse or neglect cases or sex offenses involving a child are discussed by multidisciplinary child sexual abuse response teams established pursuant to § 15.2-1627.5, or (iii) individual cases of abuse, neglect, or exploitation of adults as defined in §63.2-1603 are discussed by multidisciplinary teams established pursuant to §§15.2-1627.5 and 63.2-1605. The findings of any such team may be disclosed or published in statistical or other aggregated form that does not disclose the identity of specific individuals.
33. Information contained in the strategic plan, marketing plan, or operational plan prepared by the Virginia Economic Development Partnership Authority pursuant to §2.2-2237.1 regarding target companies, specific allocation of resources and staff for marketing activities, and specific marketing activities that would reveal to the Commonwealth's competitors for economic development projects the strategies intended to be deployed by the Commonwealth, thereby adversely affecting the financial interest of the Commonwealth. The executive summaries of the strategic plan, marketing plan, and operational plan shall not be redacted or withheld pursuant to this subdivision.
34. Information discussed in a closed session of the Physical Therapy Compact Commission or the Executive Board or other committees of the Commission for purposes set forth in subsection E of §54.1-3491.
35. Information held by the Commonwealth of Virginia Innovation Partnership Authority (the Authority), an advisory committee of the Authority, or any other entity designated by the Authority, relating to (i) internal deliberations of or decisions by the Authority on the pursuit of particular investment strategies prior to the execution of such investment strategies and (ii) trade secrets, as defined in the Uniform Trade Secrets Act (§59.1-336 et seq.), provided by a private entity to the Authority, if such disclosure of records pursuant to clause (i) or (ii) would have an adverse impact on the financial interest of the Authority or a private entity.
36. Personal information provided to or obtained by the Virginia Lottery in connection with the voluntary exclusion program administered pursuant to §58.1-4015.1.
37. Personal information provided to or obtained by the Virginia Lottery concerning the identity of any person reporting prohibited conduct pursuant to §58.1-4043.
§2.2-4006. Exemptions from requirements of this article.
A. The following agency actions otherwise subject to this chapter and §2.2-4103 of the Virginia Register Act shall be exempted from the operation of this article:
1. Agency orders or regulations fixing rates or prices.
2. Regulations that establish or prescribe agency organization, internal practice or procedures, including delegations of authority.
3. Regulations that consist only of changes in style or form or corrections of technical errors. Each promulgating agency shall review all references to sections of the Code of Virginia within their regulations each time a new supplement or replacement volume to the Code of Virginia is published to ensure the accuracy of each section or section subdivision identification listed.
4. Regulations that are:
a. Necessary to conform to changes in Virginia statutory law or the appropriation act where no agency discretion is involved. However, such regulations shall be filed with the Registrar within 90 days of the law's effective date;
b. Required by order of any state or federal court of competent jurisdiction where no agency discretion is involved; or
c. Necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation, and the Registrar has so determined in writing. Notice of the proposed adoption of these regulations and the Registrar's determination shall be published in the Virginia Register not less than 30 days prior to the effective date of the regulation.
5. Regulations of the Board of Agriculture and Consumer Services adopted pursuant to subsection B of §3.2-3929 or clause (v) or (vi) of subsection C of §3.2-3931 after having been considered at two or more Board meetings and one public hearing.
6. Regulations of (i) the regulatory boards served by the Department of Labor and Industry pursuant to Title 40.1 and the Department of Professional and Occupational Regulation or the Department of Health Professions pursuant to Title 54.1 and (ii) the Board of Accountancy that are limited to reducing fees charged to regulants and applicants.
7. The development and issuance of procedural policy relating to risk-based mine inspections by the Department of Energy authorized pursuant to §§45.2-560 and 45.2-1149.
8. General permits issued by (i)
the (a) State Air Pollution Control
Board of Environmental Resources
pursuant to Chapter 13 (§10.1-1300 et seq.) of Title 10.1 or (b) State Water
Control, (ii)
the Board of Environmental Resources
pursuant to the State Water Control Law (§62.1-44.2 et seq.), and
Chapter 24 (§62.1-242 et seq.) of Title 62.1
and Chapter 25 (§62.1-254 et seq.) of Title 62.1, (c) (iii) the
Virginia Soil and Water Conservation Board pursuant to the Dam Safety Act (§
10.1-604 et seq.), and (d) (iv) the Marine Resources Commission for
the development and issuance of general wetlands permits by
the Marine Resources Commission pursuant to subsection B of
§28.2-1307, if the respective Board or Commission (i) (a) provides a Notice of
Intended Regulatory Action in conformance with the provisions of §2.2-4007.01, (ii); (b)
following the passage of 30 days from the publication of the Notice of Intended
Regulatory Action forms a technical advisory committee composed of relevant
stakeholders, including potentially affected citizens groups, to assist in the
development of the general permit, (iii); (c)
provides notice and receives oral and written comment as provided in §
2.2-4007.03,; and (iv) (d) conducts at least one
public hearing on the proposed general permit.
9. The development and issuance by the Board of Education of guidelines on constitutional rights and restrictions relating to the recitation of the pledge of allegiance to the American flag in public schools pursuant to §22.1-202.
10. Regulations of the Board of the Virginia College Savings Plan adopted pursuant to §23.1-704.
11. Regulations of the Marine Resources Commission.
12. Regulations adopted by the Board of Housing and Community Development pursuant to (i) Statewide Fire Prevention Code (§27-94 et seq.), (ii) the Industrialized Building Safety Law (§36-70 et seq.), (iii) the Uniform Statewide Building Code (§36-97 et seq.), and (iv) §36-98.3, provided the Board (a) provides a Notice of Intended Regulatory Action in conformance with the provisions of §2.2-4007.01, (b) publishes the proposed regulation and provides an opportunity for oral and written comments as provided in § 2.2-4007.03, and (c) conducts at least one public hearing as provided in §§ 2.2-4009 and 36-100 prior to the publishing of the proposed regulations. Notwithstanding the provisions of this subdivision, any regulations promulgated by the Board shall remain subject to the provisions of §2.2-4007.06 concerning public petitions, and §§2.2-4013 and 2.2-4014 concerning review by the Governor and General Assembly.
13. Amendments to regulations of the Board to schedule a substance pursuant to subsection D or E of §54.1-3443.
14. Waste load allocations adopted, amended, or repealed by
the State Water Control Board of Environmental Resources
pursuant to the State Water Control Law (§62.1-44.2 et seq.), including but
not limited to Article 4.01 (§62.1-44.19:4 et seq.) of the State Water Control
Law, if the Board (i) provides public notice in the Virginia Register; (ii) if
requested by the public during the initial public notice 30-day comment period,
forms an advisory group composed of relevant stakeholders; (iii) receives and provides
summary response to written comments; and (iv) conducts at least one public
meeting. Notwithstanding the provisions of this subdivision, any such waste
load allocations adopted, amended, or repealed by the Board shall be subject to
the provisions of §§2.2-4013 and 2.2-4014 concerning review by the Governor
and General Assembly.
15. Regulations of the Workers' Compensation Commission adopted pursuant to §65.2-605, including regulations that adopt, amend, adjust, or repeal Virginia fee schedules for medical services, provided the Workers' Compensation Commission (i) utilizes a regulatory advisory panel constituted as provided in subdivision F 2 of §65.2-605 to assist in the development of such regulations and (ii) provides an opportunity for public comment on the regulations prior to adoption.
16. Amendments to the State Health Services Plan adopted by the Board of Health following receipt of recommendations by the State Health Services Task Force pursuant to §32.1-102.2:1 if the Board (i) provides a Notice of Intended Regulatory Action in accordance with the requirements of § 2.2-4007.01, (ii) provides notice and receives comments as provided in § 2.2-4007.03, and (iii) conducts at least one public hearing on the proposed amendments.
B. Whenever regulations are adopted under this section, the agency shall state as part thereof that it will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision. The effective date of regulations adopted under this section shall be in accordance with the provisions of §2.2-4015, except in the case of emergency regulations, which shall become effective as provided in subsection B of § 2.2-4012.
C. A regulation for which an exemption is claimed under this section or §2.2-4002 or 2.2-4011 and that is placed before a board or commission for consideration shall be provided at least two days in advance of the board or commission meeting to members of the public that request a copy of that regulation. A copy of that regulation shall be made available to the public attending such meeting.
§2.2-4007.07. Department of Environmental Quality; variances.
The provisions of §§2.2-4007 through 2.2-4007.06 shall not
apply to the issuance by the State Air Pollution Control Board Department of Environmental Quality
of variances to its the
regulations of the Board of Environmental
Resources.
§2.2-4013. Executive review of proposed and final regulations; changes with substantial impact.
A. The Governor shall adopt and publish procedures by executive order for review of all proposed regulations governed by this chapter by June 30 of the year in which the Governor takes office. The procedures shall include (i) review by the Attorney General to ensure statutory authority for the proposed regulations; and (ii) examination by the Governor to determine if the proposed regulations are (a) necessary to protect the public health, safety and welfare and (b) clearly written and easily understandable. The procedures may also include review of the proposed regulation by the appropriate Cabinet Secretary.
The Governor shall transmit his comments, if any, on a
proposed regulation to the Registrar and the agency no later than fifteen 15
days following the completion of the public comment period provided for in §
2.2-4007.03. The Governor may recommend amendments or modifications to any
regulation that would bring that regulation into conformity with statutory
authority or state or federal laws, regulations or judicial decisions.
Not less than fifteen 15 days following the
completion of the public comment period provided for in §2.2-4007.03, the
agency may (i) adopt the proposed regulation if the Governor has no objection
to the regulation; (ii) modify and adopt the proposed regulation after
considering and incorporating the Governor's objections or suggestions, if any;
or (iii) adopt the regulation without changes despite the Governor's
recommendations for change.
B. Upon final adoption of the regulation, the agency shall forward a copy of the regulation to the Registrar of Regulations for publication as soon as practicable in the Register. All changes to the proposed regulation shall be highlighted in the final regulation, and substantial changes to the proposed regulation shall be explained in the final regulation.
C. If the Governor finds that one or more changes with
substantial impact have been made to the proposed regulation, he may require
the agency to provide an additional thirty 30 days to solicit additional
public comment on the changes by transmitting notice of the additional public
comment period to the agency and to the Registrar within the 30-day final
adoption period described in subsection D, and publishing the notice in the
Register. The additional public comment period required by the Governor shall
begin upon publication of the notice in the Register.
D. A 30-day final adoption period for regulations shall commence upon the publication of the final regulation in the Register. The Governor may review the final regulation during this 30-day final adoption period and if he objects to any portion or all of a regulation, the Governor may file a formal objection to the regulation, suspend the effective date of the regulation in accordance with subsection B of §2.2-4014, or both.
If the Governor files a formal objection to the regulation, he shall forward his objections to the Registrar and agency prior to the conclusion of the 30-day final adoption period. The Governor shall be deemed to have acquiesced to a promulgated regulation if he fails to object to it or if he fails to suspend the effective date of the regulation in accordance with subsection B of §2.2-4014. The Governor's objection, or the suspension of the regulation, or both if applicable, shall be published in the Register.
A regulation shall become effective as provided in §2.2-4015.
E. This section shall not apply to the issuance by the State Air Pollution Control Board Department of Environmental Quality
of variances to its regulations.
§2.2-4014. Legislative review of proposed and final regulations.
A. After publication of the Register pursuant to §2.2-4031, the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable or the Joint Commission on Administrative Rules may meet and, during the promulgation or final adoption process, file with the Registrar and the promulgating agency an objection to a proposed or final adopted regulation. The Registrar shall publish any such objection received by him as soon as practicable in the Register. Within 21 days after the receipt by the promulgating agency of a legislative objection, that agency shall file a response with the Registrar, the objecting legislative committee or the Joint Commission on Administrative Rules, and the Governor. If a legislative objection is filed within the final adoption period, subdivision A 1 of §2.2-4015 shall govern.
B. In addition or as an alternative to the provisions of subsection A, the standing committee of both houses of the General Assembly to which matters relating to the content are most properly referable or the Joint Commission on Administrative Rules may suspend the effective date of any portion or all of a final regulation with the Governor's concurrence. The Governor and (i) the applicable standing committee of each house or (ii) the Joint Commission on Administrative Rules may direct, through a statement signed by a majority of their respective members and by the Governor, that the effective date of a portion or all of the final regulation is suspended and shall not take effect until the end of the next regular legislative session. This statement shall be transmitted to the promulgating agency and the Registrar within the 30-day final adoption period, or if a later effective date is specified by the agency the statement may be transmitted at any time prior to the specified later effective date, and shall be published in the Register.
If a bill is passed at the next regular legislative session to nullify a portion but not all of the regulation, then the promulgating agency (i) may promulgate the regulation under the provision of subdivision A 4 a of § 2.2-4006, if it makes no changes to the regulation other than those required by statutory law or (ii) shall follow the provisions of §§2.2-4007.01 through 2.2-4007.06, if it wishes to also make discretionary changes to the regulation. If a bill to nullify all or a portion of the suspended regulation, or to modify the statutory authority for the regulation, is not passed at the next regular legislative session, then the suspended regulation shall become effective at the conclusion of the session, unless the suspended regulation is withdrawn by the agency.
C. A regulation shall become effective as provided in § 2.2-4015.
D. This section shall not apply to the issuance by the State Air Pollution Control Board Department of Environmental Quality
of variances to its regulations.
§2.2-4015. Effective date of regulation; exception.
A. A regulation adopted in accordance with this chapter and
the Virginia Register Act (§2.2-4100 et seq.) shall become effective at the
conclusion of the thirty-day 30-day final adoption period
provided for in subsection D of §2.2-4013, or any other later date specified
by the agency, unless:
1. A legislative objection has been filed in accordance with §
2.2-4014, in which event the regulation, unless withdrawn by the agency, shall
become effective on a date specified by the agency that shall be after the
expiration of the applicable twenty-one-day 21-day extension period
provided in §2.2-4014;
2. The Governor has exercised his authority in accordance with §2.2-4013 to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn by the agency, shall become effective on a date specified by the agency that shall be after the period for which the Governor has provided for additional public comment;
3. The Governor and (i) the appropriate standing committees of each house of the General Assembly or (ii) the Joint Commission on Administrative Rules have exercised their authority in accordance with subsection B of §2.2-4014 to suspend the effective date of a regulation until the end of the next regular legislative session; or
4. The agency has suspended the regulatory process in accordance with §2.2-4007.06, or for any reason it deems necessary or appropriate, in which event the regulation, unless withdrawn by the agency, shall become effective in accordance with subsection B.
B. Whenever the regulatory process has been suspended for any
reason, any action by the agency that either amends the regulation or does not
amend the regulation but specifies a new effective date shall be considered a
readoption of the regulation for the purposes of appeal. If the regulation is
suspended under §2.2-4007.06, such readoption shall take place after the thirty-day
30-day public comment period required by that subsection.
Suspension of the regulatory process by the agency may occur simultaneously
with the filing of final regulations as provided in subsection B of §2.2-4013.
When a regulation has been suspended, the agency must set the
effective date no earlier than fifteen 15 days from publication of
the readoption action and any changes made to the regulation. During that fifteen-day 15-day period, if the agency
receives requests from at least twenty-five 25 persons for the opportunity
to comment on new substantial changes, it shall again suspend the regulation
pursuant to §2.2-4007.06.
C. This section shall not apply to the issuance by the State Air Pollution Control Board Department of Environmental Quality
of variances to its regulations.
§2.2-4021. Timetable for decision; exemptions.
A. In cases where a board or commission meets to render (i) an informal fact-finding decision or (ii) a decision on a litigated issue, and information from a prior proceeding is being considered, persons who participated in the prior proceeding shall be provided an opportunity to respond at the board or commission meeting to any summaries of the prior proceeding prepared by or for the board or commission.
B. In any informal fact-finding, formal proceeding, or summary
case decision proceeding in which a hearing officer is not used or is not
empowered to recommend a finding, the board, commission, or agency personnel
responsible for rendering a decision shall render that decision within 90 days
from the date of the informal fact-finding, formal proceeding, or completion of
a summary case decision proceeding, or from a later date agreed to by the named
party and the agency. If the agency does not render a decision within 90 days,
the named party to the case decision may provide written notice to the agency
that a decision is due. If no decision is made within 30 days from agency
receipt of the notice, the decision shall be deemed to be in favor of the named
party. The preceding sentence shall not apply to case decisions before (i) the State Water Control Board or
the Department of Environmental Quality to the extent necessary to comply with
the federal Clean Water Act, 33 U.S.C. §1251 et
seq., (ii) the State Air
Pollution Control Board or the Department of
Environmental Quality to the extent necessary to comply with the federal Clean
Air Act, 42 U.S.C. §7401 et seq., or
(iii) the Virginia Soil and Water Conservation Board or the Department of
Conservation and Recreation to the extent necessary to comply with the federal
Clean Water Act. An agency shall provide notification to the named party of its
decision within five days of the decision.
C. In any informal fact-finding, formal proceeding, or summary
case decision proceeding in which a hearing officer is empowered to recommend a
finding, the board, commission, or agency personnel responsible for rendering a
decision shall render that decision within 30 days from the date that the
agency receives the hearing officer's recommendation. If the agency does not
render a decision within 30 days, the named party to the case decision may
provide written notice to the agency that a decision is due. If no decision is
made within 30 days from agency receipt of the notice, the decision is deemed
to be in favor of the named party. The preceding sentence shall not apply to
case decisions before (i) the State Water
Control Board or the Department of
Environmental Quality to the extent necessary to comply with the federal Clean
Water Act, 33 U.S.C. §1251 et seq.,
(ii) the State Air Pollution Control Board or
the Department of Environmental Quality to the extent necessary to comply with
the federal Clean Air Act, 42 U.S.C. §7401 et
seq., or (iii) the Virginia Soil and Water Conservation
Board or the Department of Conservation and Recreation to the extent necessary
to comply with the federal Clean Water Act. An agency shall provide notice to
the named party of its decision within five days of the decision.
D. The provisions of subsection B notwithstanding, if the board members or agency personnel who conducted the informal fact-finding, formal proceeding, or summary case decision proceeding are unable to attend to official duties due to sickness, disability, or termination of their official capacity with the agency, then the timeframe provisions of subsection B shall be reset and commence from the date that either new board members or agency personnel are assigned to the matter or a new proceeding is conducted if needed, whichever is later. An agency shall provide notice within five days to the named party of any incapacity of the board members or agency personnel that necessitates a replacement or a new proceeding.
§3.2-3602. Local government regulation of fertilizer.
A. No locality shall regulate the registration, packaging,
labeling, sale, use, application, storage or distribution of fertilizers except
by ordinance as provided for in the requirements of the Chesapeake Bay
Preservation Act (§62.1-44.15:67 et seq.), the Erosion and Sediment Control
Law (§62.1-44.15:51 et seq.), the Stormwater Management Act (§62.1-44.15:24
et seq.) or other nonpoint source regulations adopted by the Department of
Environmental Quality or the State Water Control
Board of Environmental Resources.
The provisions of this section shall not preempt the adoption, amendment, or
enforcement of the Statewide Fire Prevention Code pursuant to §27-97 and the
Uniform Statewide Building Code pursuant to §36-98.
B. The Commissioner may enter into an agreement with a locality to provide oversight and data collection assistance related to the requirements of certified contractor-applicators pursuant to §3.2-3602.1.
§3.2-3937. Educational programs.
The State Water Control Board Department of Environmental Quality,
the Board of Wildlife Resources, the Virginia Marine Resources Commission, the
Virginia Institute of Marine Science, and the Department shall through
cooperative programs develop and implement a program to inform interstate and
intrastate paint manufacturers and distributors, vessel owners, and commercial
boat yards of the properties of tributyltin in marine antifoulant paints and
the law to restrict its use.
§3.2-5633. Commissioner to receive enforcement authority for the Stage II Vapor Recovery Programs.
A. Upon the request of the Commissioner, the State Air Pollution Control
Board of Environmental Resources may
delegate to the Commissioner its authority under Chapter 13 (§10.1-1300 et
seq.) of Title 10.1, to
implement and enforce any provisions of its regulations covering the storage
and transfer of petroleum liquids. Upon receiving such delegation, the
authority to implement and enforce the regulations under Chapter 13 of Title
10.1 shall be vested solely in the Commissioner, notwithstanding any provision
of law contained in Title 10.1, except as provided herein. The State Air Pollution Control
Board of Environmental Resources, in
delegating its authority under this section, may make the delegation subject to
any conditions it deems appropriate to ensure effective implementation of the
regulations according to the policies of the State Air
Pollution Control Board of
Environmental Resources.
B. In addition to the Commissioner's authority to implement
and enforce any provisions of the regulations of the State Air
Pollution Control Board of
Environmental Resources covering the storage and transfer
of petroleum liquids, the Board may adopt regulations as are reasonably
necessary for the administration, monitoring,
and enforcement of the law relating to the storage and transfer of petroleum
liquids. Any violation of the provisions covering the storage and transfer of
petroleum liquids shall be deemed to be a violation of this chapter, and the
Commissioner may take appropriate enforcement action pursuant to the provisions
of this chapter.
§8.01-225. Persons rendering emergency care, obstetrical services exempt from liability.
A. Any person who:
1. In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor's office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance. For purposes of this subdivision, emergency care or assistance includes the forcible entry of a motor vehicle in order to remove an unattended minor at risk of serious bodily injury or death, provided that the person has attempted to contact a law-enforcement officer, as defined in § 9.1-101, a firefighter, as defined in §65.2-102, emergency medical services personnel, as defined in §32.1-111.1, or an emergency 911 system, if feasible under the circumstances.
2. In the absence of gross negligence, renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for in connection with the pregnancy by such person or by another professionally associated with such person and whose medical records are not reasonably available to such person shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care or assistance. The immunity herein granted shall apply only to the emergency medical care provided.
3. In good faith and without compensation, including any emergency medical services provider who holds a valid certificate issued by the Commissioner of Health, administers epinephrine in an emergency to an individual shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such person has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.
4. Provides assistance upon request of any police agency, fire
department, emergency medical services agency, or governmental agency in the
event of an accident or other emergency involving the use, handling,
transportation, transmission, or storage of liquefied petroleum gas, liquefied
natural gas, hazardous material, or hazardous waste as defined in §10.1-1400
or regulations of the Virginia Waste Management
Board of Environmental Resources
shall not be liable for any civil damages resulting from any act of commission
or omission on his part in the course of his rendering such assistance in good
faith.
5. Is an emergency medical services provider possessing a
valid certificate issued by authority of the State Board of Health who in good
faith renders emergency care or assistance, whether in person or by telephone
or other means of communication, without compensation, to any injured or ill
person, whether at the scene of an accident, fire, or any other place, or while
transporting such injured or ill person to, from, or between any hospital,
medical facility, medical clinic, doctor's office, or other similar or related
medical facility, shall not be liable for any civil damages for acts or omissions
resulting from the rendering of such emergency care, treatment, or assistance,
including but in no way limited to acts or omissions which that involve violations of
State Department of Health regulations or any other state regulations in the
rendering of such emergency care or assistance.
6. In good faith and without compensation, renders or
administers emergency cardiopulmonary resuscitation (CPR); cardiac
defibrillation, including, but not limited to, the use of an automated external
defibrillator (AED); or other emergency life-sustaining or resuscitative
treatments or procedures which that have been approved by the
State Board of Health to any sick or injured person, whether at the scene of a
fire, an accident, or any other place, or while transporting such person to or
from any hospital, clinic, doctor's office, or other medical facility, shall be
deemed qualified to administer such emergency treatments and procedures and
shall not be liable for acts or omissions resulting from the rendering of such
emergency resuscitative treatments or procedures.
7. Operates an AED at the scene of an emergency, trains
individuals to be operators of AEDs, or orders AEDs,
shall be immune from civil liability for any personal injury that results from
any act or omission in the use of an AED in an emergency where the person
performing the defibrillation acts as an ordinary, reasonably prudent person
would have acted under the same or similar circumstances, unless such personal
injury results from gross negligence or willful or wanton misconduct of the
person rendering such emergency care.
8. Maintains an AED located on real property owned or controlled by such person shall be immune from civil liability for any personal injury that results from any act or omission in the use in an emergency of an AED located on such property unless such personal injury results from gross negligence or willful or wanton misconduct of the person who maintains the AED or his agent or employee.
9. Is an employee of a school board or of a local health department approved by the local governing body to provide health services pursuant to §22.1-274 who, while on school property or at a school-sponsored event, (i) renders emergency care or assistance to any sick or injured person; (ii) renders or administers emergency cardiopulmonary resuscitation (CPR); cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator (AED); or other emergency life-sustaining or resuscitative treatments or procedures that have been approved by the State Board of Health to any sick or injured person; (iii) operates an AED, trains individuals to be operators of AEDs, or orders AEDs; (iv) maintains an AED; or (v) renders care in accordance with a seizure management and action plan pursuant to §22.1-274.6, shall not be liable for civil damages for ordinary negligence in acts or omissions on the part of such employee while engaged in the acts described in this subdivision.
10. Is a volunteer in good standing and certified to render emergency care by the National Ski Patrol System, Inc., who, in good faith and without compensation, renders emergency care or assistance to any injured or ill person, whether at the scene of a ski resort rescue, outdoor emergency rescue, or any other place or while transporting such injured or ill person to a place accessible for transfer to any available emergency medical system unit, or any resort owner voluntarily providing a ski patroller employed by him to engage in rescue or recovery work at a resort not owned or operated by him, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment, or assistance, including but not limited to acts or omissions which involve violations of any state regulation or any standard of the National Ski Patrol System, Inc., in the rendering of such emergency care or assistance, unless such act or omission was the result of gross negligence or willful misconduct.
11. Is an employee of (i) a school board, (ii) a school for students with disabilities as defined in §22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to §22.1-19 as administered by the Virginia Council for Private Education and is authorized by a prescriber and trained in the administration of insulin and glucagon, who, upon the written request of the parents as defined in §22.1-1, assists with the administration of insulin or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of §22.1-274.01:1 or administers glucagon to a student diagnosed as having diabetes who requires insulin injections during the school day or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the child's medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any such employee is covered by the immunity granted herein, the school board or school employing him shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
12. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of insulin and glucagon, who assists with the administration of insulin or administers glucagon to a student diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the student's medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
13. Is a school nurse, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by a prescriber and trained in the administration of epinephrine and who provides, administers, or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
14. Is an employee of a school for students with disabilities, as defined in §22.1-319 and licensed by the Board of Education, or an employee of a private school that is accredited pursuant to §22.1-19 as administered by the Virginia Council for Private Education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the school shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
15. Is an employee of a public institution of higher education or a private institution of higher education who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a student believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the institution shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
16. Is an employee of an organization providing outdoor educational experiences or programs for youth who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a participant in the outdoor experience or program for youth believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
17. Is an employee of a restaurant licensed pursuant to Chapter 3 (§35.1-18 et seq.) of Title 35.1, is authorized by a prescriber and trained in the administration of epinephrine, and provides, administers, or assists in the administration of epinephrine to an individual believed in good faith to be having an anaphylactic reaction on the premises of the restaurant at which the employee is employed, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
18. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of insulin and glucagon and who administers or assists with the administration of insulin or administers glucagon to a person diagnosed as having diabetes who requires insulin injections or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia in accordance with §54.1-3408 shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered in accordance with the prescriber's instructions or such person has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee of a provider licensed by the Department of Behavioral Health and Developmental Services or a person who provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services is covered by the immunity granted herein, the provider shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
19. Is an employee of a provider licensed by the Department of Behavioral Health and Developmental Services, or provides services pursuant to a contract with a provider licensed by the Department of Behavioral Health and Developmental Services, who has been trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person believed in good faith to be having an anaphylactic reaction in accordance with the prescriber's instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
20. In good faith prescribes, dispenses, or administers naloxone or other opioid antagonist used for overdose reversal in an emergency to an individual who is believed to be experiencing or about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if acting in accordance with the provisions of subsection X or Y of § 54.1-3408 or in his role as a member of an emergency medical services agency.
21. In good faith administers naloxone or other opioid antagonist used for overdose reversal to a person who is believed to be experiencing or about to experience a life-threatening opioid overdose in accordance with the provisions of subsection Z of §54.1-3408 shall not be liable for any civil damages for any personal injury that results from any act or omission in the administration of naloxone or other opioid antagonist used for overdose reversal, unless such act or omission was the result of gross negligence or willful and wanton misconduct.
22. Is an employee of a school board, school for students with disabilities as defined in §22.1-319 licensed by the Board of Education, or private school accredited pursuant to §22.1-19 as administered by the Virginia Council for Private Education who is trained in the administration of injected medications for the treatment of adrenal crisis resulting from a condition causing adrenal insufficiency and who administers or assists in the administration of such medications to a student diagnosed with a condition causing adrenal insufficiency when the student is believed to be experiencing or about to experience an adrenal crisis pursuant to a written order or standing protocol issued by a prescriber within the course of his professional practice and in accordance with the prescriber's instructions shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
23. Is a school nurse, a licensed athletic trainer under contract with a local school division, an employee of a school board, an employee of a local governing body, or an employee of a local health department who is authorized by the local health director and trained in the administration of albuterol inhalers and valved holding chambers or nebulized albuterol and who provides, administers, or assists in the administration of an albuterol inhaler and a valved holding chamber or nebulized albuterol for a student believed in good faith to be in need of such medication, or is the prescriber of such medication, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
24. Is an employee of a public place, as defined in § 15.2-2820, who is authorized by a prescriber and trained in the administration of epinephrine and who administers or assists in the administration of epinephrine to a person present in the public place believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment. Whenever any employee is covered by the immunity granted in this subdivision, the organization shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from such administration or assistance.
25. Is a nurse at an early childhood care and education entity, employee at the entity, or employee of a local health department who is authorized by a prescriber and trained in the administration of epinephrine and who provides, administers, or assists in the administration of epinephrine to a child believed in good faith to be having an anaphylactic reaction, or is the prescriber of the epinephrine, shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment.
B. Any licensed physician serving without compensation as the operational medical director for an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency medical services in good faith by the personnel of such licensed agency unless such act or omission was the result of such physician's gross negligence or willful misconduct.
Any person serving without compensation as a dispatcher for any licensed public or nonprofit emergency medical services agency in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency services in good faith by the personnel of such licensed agency unless such act or omission was the result of such dispatcher's gross negligence or willful misconduct.
Any individual, certified by the State Office of Emergency Medical Services as an emergency medical services instructor and pursuant to a written agreement with such office, who, in good faith and in the performance of his duties, provides instruction to persons for certification or recertification as a certified basic life support or advanced life support emergency medical services provider shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such office unless such act or omission was the result of such emergency medical services instructor's gross negligence or willful misconduct.
Any licensed physician serving without compensation as a medical advisor to an E-911 system in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to establish protocols to be used by the personnel of the E-911 service, as defined in §58.1-1730, when answering emergency calls unless such act or omission was the result of such physician's gross negligence or willful misconduct.
Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician's gross negligence or willful misconduct.
Any licensed physician serving without compensation as a supervisor of an AED in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to the owner of the AED relating to personnel training, local emergency medical services coordination, protocol approval, AED deployment strategies, and equipment maintenance plans and records unless such act or omission was the result of such physician's gross negligence or willful misconduct.
C. Any communications services provider, as defined in § 58.1-647, including mobile service, and any provider of Voice-over-Internet Protocol service, in the Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering such service with or without charge related to emergency calls unless such act or omission was the result of such service provider's gross negligence or willful misconduct.
Any volunteer engaging in rescue or recovery work at a mine, or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct. For purposes of this subsection, "Voice-over-Internet Protocol service" or "VoIP service" means any Internet protocol-enabled services utilizing a broadband connection, actually originating or terminating in Internet Protocol from either or both ends of a channel of communication offering real time, multidirectional voice functionality, including, but not limited to, services similar to traditional telephone service.
D. Nothing contained in this section shall be construed to provide immunity from liability arising out of the operation of a motor vehicle.
E. For the purposes of this section, "compensation" shall does
not be construed to include (i) the
salaries of police, fire, or other public officials or personnel who render
such emergency assistance; (ii) the salaries or wages of employees of a coal
producer engaging in emergency medical services or first aid services pursuant
to the provisions of §45.2-531, 45.2-579, 45.2-863 or 45.2-910; (iii)
complimentary lift tickets, food, lodging, or other gifts provided as a
gratuity to volunteer members of the National Ski Patrol System, Inc., by any
resort, group, or agency; (iv) the salary of any person who (a) owns an AED for
the use at the scene of an emergency, (b) trains individuals, in courses
approved by the Board of Health, to operate AEDs at the scene of emergencies,
(c) orders AEDs for use at the scene of emergencies, or (d) operates an AED at
the scene of an emergency; or (v) expenses reimbursed to any person providing
care or assistance pursuant to this section.
For the purposes of this section, "emergency medical
services provider" shall include includes a person licensed or
certified as such or its equivalent by any other state when he is performing
services that he is licensed or certified to perform by such other state in
caring for a patient in transit in the Commonwealth, which care originated in
such other state.
Further, the public shall be urged to receive training on how to use CPR and an AED in order to acquire the skills and confidence to respond to emergencies using both CPR and an AED.
§10.1-404. Recommendation that a river be designated a scenic river.
A recommendation to the Governor and General Assembly that a river or section thereof be designated a scenic river shall be submitted with:
1. The views and recommendations of the State Water
Control Board Department
of Environmental Quality and other affected agencies; and
2. A report showing the proposed area and classification, the characteristics which qualify the river or section of river for designation, the general ownership and land use in the area, and the estimated costs of acquisition and administration in the Scenic Rivers System.
§10.1-605. Promulgation of regulations by the Board; guidance document.
A. The Board shall adopt regulations to ensure that impounding
structures in the Commonwealth are properly and safely constructed, maintained, and operated. Dam safety
regulations promulgated by the State Water Control
Board of Environmental Resources
shall remain in full force until amended in accordance with applicable
procedures.
B. The Board's Impounding Structure Regulations shall not require any impounding structure in existence or under a construction permit prior to July 1, 2010, that is currently classified as high hazard, or is subsequently found to be high hazard through reclassification, to upgrade its spillway to pass a rainfall event greater than the maximum recorded within the Commonwealth, which shall be deemed to be 90 percent of the probable maximum precipitation.
1. Such an impounding structure shall be determined to be in compliance with the spillway requirements of the regulations provided that (i) the impounding structure will pass two-thirds of the reduced probable maximum precipitation requirement described in this subsection and (ii) the dam owner certifies annually and by January 15 that such impounding structure meets each of the following conditions:
a. The owner has a current emergency action plan that is approved by the Board and that is developed and updated in accordance with the regulations;
b. The owner has exercised the emergency action plan in accordance with the regulations and conducts a table-top exercise at least once every two years;
c. The Department has verification that both the local organization for emergency management and the Virginia Department of Emergency Management have on file current emergency action plans and updates for the impounding structure;
d. That conditions at the impounding structure are monitored on a daily basis and as dictated by the emergency action plan;
e. The impounding structure is inspected at least annually by a professional engineer and all observed deficiencies are addressed within 120 days of such inspection;
f. The owner has a dam break inundation zone map developed in accordance with the regulations that is acceptable to the Department;
g. The owner is insured in an amount that will substantially cover the costs of downstream property losses to others that may result from a dam failure; and
h. The owner shall post the dam's emergency action plan on his website, or upon the request of the owner, the Department or another state agency responsible for providing emergency management services to citizens agrees to post the plan on its website. If the Department or another state agency agrees to post the plan on its website, the owner shall provide the plan in a format suitable for posting.
2. A dam owner who meets the conditions of subdivisions 1 a through 1 h, but has not provided record drawings to the Department for his impounding structure, shall submit a complete record report developed in accordance with the construction permit requirements of the Impounding Structure Regulations, excluding the required submittal of the record drawings.
3. A dam owner who fails to submit certifications required by
subdivisions 1 a through 1 h
in a timely fashion shall not enjoy the presumption that such impounding structure
is deemed to be in compliance with the spillway requirements of the Board's
Impounding Structure Regulations (4VAC50-20).
4. Any dam owner who has submitted the certifications required by subdivisions 1 a through 1 h shall make (i) such certifications, (ii) the emergency action plan required by subdivision 1 a, and (iii) the certificate of insurance required by subdivision 1 g available, upon request and within five business days, to any person. A dam owner may comply with the requirements of this subdivision by providing the same information on a website and directing the requestor to such website. A dam owner who fails to comply with this subdivision shall be subject to a civil penalty pursuant to §10.1-613.2.
C. The Board's regulations shall establish an incremental damage analysis procedure that permits the spillway design flood requirement for an impounding structure to be reduced to the level at which dam failure shall not significantly increase downstream hazard to life or property, provided that the spillway design flood requirement shall not be reduced to below the 100-year flood event for high or significant hazard impounding structures, or to below the 50-year flood event for low hazard potential impounding structures.
D. The Board shall consider the impact of limited-use or private roadways with low traffic volume and low public safety risk that are downstream from or across an impounding structure in the determination of the hazard potential classification of an impounding structure.
§10.1-651. Establishment and administration of Program.
The Stream Restoration Assistance Program is continued to
protect the natural streams of the Commonwealth. The Program shall aid in the
stabilization and protection of natural streams which that have been severely
damaged by naturally occurring flooding events. The Program shall be
administered by the Virginia Soil and Water Conservation Board in cooperation
with soil and water conservation districts and local governments throughout the
Commonwealth. To assist in the development of the Program, the Board shall seek
the advisory opinion of the State Water Control Board Department of Environmental Quality
and the Department of Wildlife Resources.
§10.1-659. Flood protection programs; coordination.
A. The provisions of this chapter shall be coordinated with
the Virginia Coastal Resilience Master Plan, the Virginia Flood Protection
Master Plan, and federal, state, and local flood prevention and water quality
programs to minimize loss of life, property damage, and negative impacts on the
environment. This program coordination shall include but not be limited to the
following: flood prevention, flood plain management, small watershed
protection, dam safety, shoreline erosion and public beach preservation, and soil
conservation programs of the Department of Conservation and Recreation; the
construction activities of the Department of Transportation, including projects
that result in hydrologic modification of rivers, streams, and flood plains;
the nontidal wetlands, water quality, Chesapeake Bay Preservation Area
criteria, stormwater management, erosion and sediment control, and other water
management programs of the State Water Control
Board of Environmental Resources;
the Virginia Coastal Zone Management Program at the Department of Environmental
Quality; forested watershed management programs of the Department of Forestry;
the agricultural stewardship, farmland preservation, and disaster assistance
programs of the Department of Agriculture and Consumer Services; the statewide
building code and other land use control programs of the Department of Housing
and Community Development; the habitat management programs of the Virginia
Marine Resources Commission; the hazard mitigation planning and disaster
response programs of the Department of Emergency Management; the fish and
wildlife habitat protection programs of the Department of Wildlife Resources;
the mineral extraction regulatory program of the Department of Energy; the
flood plain restrictions of the Virginia Waste Management
Board of Environmental Resources;
flooding-related research programs of the state universities; local government
assistance programs of the Virginia Soil and Water Conservation Board; the
Virginia Antiquities Act program of the Department of Historic Resources; the
public health and preparedness programs of the Virginia Department of Health;
the State Council of Higher Education for Virginia; the State Corporation
Commission; and any other state agency programs deemed necessary by the Director,
the Chief Resilience Officer of the Commonwealth, and the Special Assistant to
the Governor for Coastal Adaptation and Protection. The Department shall also
coordinate with soil and water conservation districts, Virginia Cooperative
Extension agents, and planning district commissions,
and shall coordinate and cooperate with localities in rendering assistance to
such localities in their efforts to comply with the planning, subdivision of
land, and zoning provisions of Chapter 22 (§15.2-2200 et seq.) of Title 15.2.
B. The Director, in coordination with the Special Assistant to the Governor for Coastal Adaptation and Protection and the Chief Resilience Officer, shall hold meetings of representatives of the programs, entities, and localities described in subsection A at least annually in order to determine, coordinate, and prioritize the Commonwealth's efforts and expenditures to increase flooding resilience and flood preparedness and to implement the Virginia Coastal Resilience Master Plan and the Virginia Flood Protection Master Plan. The Department shall review any revisions to the Virginia Flood Protection Master Plan and provide an update on the progress of the implementation of the Virginia Coastal Resilience Master Plan at any such meetings. The Department shall cooperate with other public and private agencies having flood plain management programs and shall coordinate its responsibilities under this article and any other law. These activities shall constitute the Commonwealth's flood resilience, preparedness, prevention, and protection program.
C. 1. The Chief Resilience Officer, in coordination with the Special Assistant to the Governor for Coastal Adaptation and Protection and the Director, shall establish the Virginia Coastal Resilience Technical Advisory Committee (the Committee) to assist with developing, updating, and implementing the Virginia Coastal Resilience Master Plan.
2. The Committee shall be
comprised composed
of representatives of state agencies, coastal planning district commissions,
regional commissions, academic advisors, and any other representatives as
needed. Members shall serve at the pleasure of the Governor and shall include
the following individuals or their designees: the executive directors of
coastal planning district commissions and regional commissions; the Special
Assistant to the Governor for Coastal Adaptation and Protection; the Director;
the Director of the Virginia Department State Coordinator of Emergency
Management; the Director of the Virginia Department of Housing and Community
Development; the Executive Director of the Virginia Resources Authority; the
Director of the Department of Environmental Quality; the Commissioner of the
Virginia Department of Transportation; the Director of the Virginia
Transportation Research Council; the Commissioner of the Virginia Marine
Resources Commission; the Director of the Institute for Coastal Adaptation and
Resilience; the Associate Dean for Research and Advisory Services at the
Virginia Institute of Marine Science; the Director of the William and Mary
School of Law Coastal Policy Center; the Director of the Virginia Tech Center
for Coastal Studies; the Director of the Environmental Resilience Institute at
the University of Virginia; the Director of Virginia Sea Grant; the Director of
Diversity, Equity, and Inclusion; and the Chief Data Officer of the
Commonwealth. The Chief Resilience Officer shall serve as chairman of the
Committee.
3. The Chief Resilience Officer shall invite participation by the Commander of the U.S. Army Corps of Engineers, Norfolk District; the Commander of the Navy Region Mid-Atlantic; and representatives of the seven federally recognized Tribal Nations indigenous to the Commonwealth of Virginia.
4. Appointed members shall serve in an advisory role without compensation.
5. The Committee shall meet at least quarterly.
6. The Department, the Special Assistant to the Governor for Coastal Adaptation and Protection, and the Coastal Zone Management Program shall provide staff support to the Committee.
7. The Committee shall ensure that (i) risk evaluations and project prioritization protocols are regularly updated and are informed by the best applicable scientific and technical data; (ii) statewide and regional needs are addressed using the best applicable science and long-term resilience approaches; and (iii) the Virginia Coastal Resilience Master Planning Framework is adhered to in the development and updating of the Virginia Coastal Resilience Master Plan. The Committee shall also review updates to the Virginia Coastal Resilience Master Plan and receive updates about the progress of the Virginia Flood Protection Master Plan at each meeting. Additionally, the Committee may be called upon to assist the Department with the development and updating of the Virginia Flood Protection Master Plan.
§10.1-1182. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board of Environmental Resources.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Environment" means the natural, scenic, and historic attributes of the Commonwealth.
"Environmental justice" means the fair treatment and meaningful involvement of every person, regardless of race, color, national origin, faith, disability, or income, in the development, implementation, and enforcement of environmental laws, regulations, and policies.
"Special order" means an administrative order issued
to any party that has a stated duration of not more than
twelve 12
months and that may include a civil penalty of not more than $10,000.
§10.1-1183.1. Board of Environmental Resources created; membership; terms; chairman; Executive Director.
A. There is hereby created the Board of Environmental Resources by the consolidation of the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board. All policies and regulations adopted or promulgated by the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board in effect on July 1, 2024, shall continue to be in effect as policies or regulations of the Board until and unless superseded by new policies or regulations adopted or promulgated by the Board. All regulatory actions by the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board that are pending on July 1, 2024, shall continue as pending regulatory actions of the Board. All powers, duties, and agreements entered into or issued by the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board in effect on July 1, 2024, shall be transferred to the Board and shall be treated as powers, duties, and agreements entered into or issued by the Board.
B. The Board shall consist of nine nonlegislative citizen members appointed by the Governor and subject to confirmation by the General Assembly. Members shall be appointed for terms of four years. Vacancies other than by expiration of a term shall be filled by the Governor by appointment for the unexpired term. Members of the Board shall be citizens of the Commonwealth, selected on the basis of merit without regard to political affiliation, and who shall, by character and reputation, reasonably be expected to inspire the highest degree of cooperation and confidence in the work of the Board. Members shall, by their education, training, or experience, be knowledgeable of environmental quality control and regulation and shall be representative of conservation, public health, business, land development, and agriculture. In making appointments, the Governor shall endeavor to ensure balanced geographical representation.
C. No person appointed to the Board shall be employed by persons subject to permits or enforcement orders of the Department or receive a significant portion of his income, whether directly or indirectly, from persons subject to permits or enforcement orders of the Department. Income from a vested retirement benefit shall not be considered income for the purposes of this subsection. No person shall become a member of the Board who receives, or during the previous two years has received, a significant portion of his income directly or indirectly from certificate or permit holders or applicants for a certificate or permit issued by the Department. Notwithstanding any other provision of this section, the qualifications for Board membership shall not be more strict than those required by federal statute or regulations of the U.S. Environmental Protection Agency. The provisions of this subsection shall be in addition to the requirements of the State and Local Government Conflict of Interests Act (§2.2-3100 et seq.). For the purposes of this subsection, "significant portion of income" means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion under retirement benefits, a pension, or a similar arrangement. "Income" includes retirement benefits, consulting fees, and stock dividends. Income is not received directly or indirectly from certificate or permit holders or applicants for certificates or permits when such income is derived from mutual fund payments or from other diversified investments for which the recipient does not know the identity of the primary sources of income.
D. The Board shall meet at least four times each year, and other meetings may be held at any time or place determined by the Board or upon the call of the chairman or upon written request of any two members of the Board. All members shall be duly notified of the time and place of any regular or other meeting at least five days in advance of such meeting. A majority of the members of the Board shall constitute a quorum for the transaction of business.
E. The Board shall keep a complete and accurate record of the proceedings at all of its meetings, a copy of which shall be kept on file in the office of the Executive Director and open to public inspection. Any standards, policies, rules, or regulations adopted by the Board to have general effect in part or all of the Commonwealth shall be filed in accordance with the Virginia Register Act (§2.2-4100 et seq.).
F. The Board shall elect a chairman from among its members, and an Executive Director shall be appointed as set forth in § 2.2-106. The Executive Director shall serve as executive officer of the Board but shall not serve as a member of the Board. The Executive Director shall devote his whole time to the performance of his duties, and he shall have such administrative powers as are conferred upon him by the Board. The Board may delegate to the Executive Director any of the powers and duties invested in it except the adoption and promulgation of standards, rules, and regulations.
G. The Board may call upon any state department or agency for technical assistance. All departments and agencies of the Commonwealth shall, upon request, assist the Board in the performance of its duties.
§10.1-1184.1. Additional duties of Department; controversial permits.
A. For purposes of this section, "controversial permit" means an air or water permitting action for which a public hearing has been granted pursuant to the provisions of subsection C. "Controversial permit" also means an air permitting action where a public hearing is required for (i) the construction of a new major source or for a major modification to an existing source, (ii) a new fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iii) a major modification to an existing source that is a fossil fuel-fired generating facility with a capacity of 500 megawatts or more, (iv) a new fossil fuel-fired compressor station facility used to transport natural gas, or (v) a major modification to an existing source that is a fossil fuel-fired compressor station facility used to transport natural gas.
B. At each regular meeting of the Air
Pollution Control Board or the State Water Control Board,
the Department shall provide an overview and update regarding any controversial
permits pending before the Department that are relevant to each
board the Board.
Immediately after such presentation by the Department, the board shall have an
opportunity to respond to the Department's presentation and provide commentary
regarding such pending permits. Before rendering a final decision on a
controversial permit, the Department shall publish a summary of public comments
received during the applicable public comment period and public hearing. After
such publication, the Department shall publish responses to the public comment
summary and hold a public hearing to provide an opportunity for individuals who
previously commented, either at a public hearing or in writing during the
applicable public comment period, to respond to the Department's public comment
summary and response. No new information shall be accepted at that time.
C. Any changes to regulations necessary to implement the provisions of this section shall include the following criteria for requesting and granting a public hearing on a permit action during a public comment period in those instances where a public hearing is not mandatory under state or federal law or regulation.
1. During the public comment period on permit action,
interested persons may request a public hearing to contest such action or the
terms and conditions thereof. Requests for a public hearing shall contain the
following information: (i) the name and postal mailing or email address of the
requester; (ii) the names and addresses of all persons for whom the requester
is acting as a representative (for the purposes of this requirement,
"person" includes an unincorporated association); (iii) the reason
for the request for a public hearing; (iv) a brief, informal statement setting
forth the factual nature and the extent of the interest of the requester or of
the persons for whom the requester is acting as representative in the
application or tentative determination, including an explanation of how and to
what extent such interest would be directly and adversely affected by the
issuance, denial, modification, or revocation of the permit in question; and
(v) where possible, specific references to the terms and conditions of the
permit in question, together with suggested revisions and alterations of those
terms and conditions that the requester considers are needed to conform the
permit to the intent and provisions of the basic laws of the State Air Pollution Control Board or the State
Water Control Board, as applicable.
2. Upon completion of the public comment period on a permit
action, the Director shall review all timely requests for public hearing filed
during the public comment period on the permit action and within 30 calendar
days following the expiration of the time period for the submission of requests
shall grant a public hearing, unless the permittee or applicant agrees to a
later date, if the Director finds the following: (a) (i) that there is a
significant public interest in the issuance, denial, modification, or
revocation of the permit in question as evidenced by receipt of a minimum of 25
individual requests for a public hearing; (b) (ii) that the requesters raise
substantial, disputed issues relevant to the issuance, denial, modification, or
revocation of the permit in question; and (c) (iii) that the action requested
by the interested party is not on its face inconsistent with, or in violation
of, the basic laws of the State Air Pollution Control
Board if the permit action is an air permit action, or
the basic laws of the State Water Control Board if
the permit action is a water permit action, federal law, or
any regulation promulgated thereunder.
3. The Director shall, forthwith, notify by email or mail at
his last known address (1) (i) each requester and (2) (ii)
the applicant or permittee of the decision to grant or deny a public hearing.
If the request for a public hearing is granted, the Director shall schedule the
hearing at a time between 45 and 75 days after emailing or mailing of the
notice of the decision to grant the public hearing. The Director shall cause,
or require the applicant to publish, notice of a public hearing to be published
once, in a newspaper of general circulation in the city or county where the
facility or operation that is the subject of the permit or permit application
is located, at least 30 days before the hearing date. In making its decision,
the Department shall consider (A) (a) the verbal and written
comments received during the public comment period and public hearing made part
of the record, (B) (b) any commentary of the
Board, and (C) (c)
the agency files. The public comment period shall remain open for 15 days after
the close of the public hearing if required by §10.1-1307.01 or § 62.1-44.15:01.
4. In addition, the Director may, in his discretion, convene a public hearing on a permit action.
§10.1-1184.2. Regulations; civil penalties; written notice of violation.
Prior to assessing any civil penalty pursuant to §10.1-1309,
10.1-1455, or 62.1-44.15 against any person for an alleged violation of a
regulation adopted by a the Board or permit issued by
the Department, the Department shall inform such person in writing of the
alleged violation, the potential penalties for such violation, and the actions
necessary to achieve compliance and remediate the alleged violation. The Department
may allow the person 30 days to take such actions and to provide any
additional, relevant facts to the Department, including facts that demonstrate
a good-faith attempt to achieve compliance. If compliance has not been achieved
and the alleged violation remediated after the 30 days, the Department or the
Board shall proceed in accordance with §10.1-1309, 10.1-1455, or 62.1-44.15,
as applicable.
For purposes of this
section, "Board" means the State Air Pollution Control
Board, the Virginia Waste Management Board, or the State Water Control
Board.
§10.1-1185. Appointment of Director; powers and duties of Director.
The Department shall be headed by a Director appointed by the
Governor to serve at his pleasure. The Director shall be an experienced administrator
with knowledge of environmental protection and government operation and shall
have demonstrated expertise in organizational management and environmental
science, environmental law, or environmental policy. The Director of the
Department of Environmental Quality shall, under the direction and control of
the Governor, exercise such power and perform such duties as are conferred or
imposed upon him by law and shall perform such other duties as may be required
of him by the Governor and the following Boards: the State
Air Pollution Control Board, the State Water Control Board, and the Virginia
Waste Management Board. The Director or his designee shall
serve as executive officer of the aforementioned Boards Board.
All powers and duties conferred or imposed upon the Executive Director of the Department of Air Pollution Control, the Executive Director of the State Water Control Board, the Administrator of the Council on the Environment, and the Director of the Department of Waste Management are continued and conferred or imposed upon the Director of the Department of Environmental Quality or his designee. Wherever in this title and in the Code of Virginia reference is made to the head of a division, department, or agency hereinafter transferred to this Department, it shall mean the Director of the Department of Environmental Quality.
§10.1-1186. General powers of the Department.
The Department shall have the following general powers, any of which the Director may delegate as appropriate:
1. Employ such personnel as may be required to carry out the duties of the Department;
2. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including, but not limited to, contracts with the United States, other states, other state agencies and governmental subdivisions of the Commonwealth;
3. Accept grants from the United States government and agencies and instrumentalities thereof and any other source. To these ends, the Department shall have the power to comply with such conditions and execute such agreements as may be necessary, convenient, or desirable;
4. Accept and administer services, property, gifts, and other funds donated to the Department;
5. Implement all regulations as may be adopted by the State Air Pollution Control Board, the State Water
Control Board, and the Virginia Waste Management Board;
6. Administer, under the direction of the Boards,
funds appropriated to it for environmental programs and make contracts related
thereto;
7. Advise and coordinate the responses of state agencies to
notices of proceedings by the State Water Control Board Department of Environmental Quality
to consider certifications of hydropower projects under 33 U.S.C. §1341;
8. Advise interested agencies of the Commonwealth of pending proceedings when the Department of Environmental Quality intervenes directly on behalf of the Commonwealth in a Federal Energy Regulatory Commission proceeding or when the Department of Wildlife Resources intervenes in a Federal Energy Regulatory Commission proceeding to coordinate the provision of information and testimony for use in the proceedings;
9. Notwithstanding any other provision of law and to the
extent consistent with federal requirements, following a proceeding as provided
in §2.2-4019, issue special orders to any person to comply with: (i) the provisions of any law
administered by the Boards Board, the Director, or the Department,;
(ii) any condition of a permit or a certification,; (iii) any regulations of the Boards, Board; or
(iv) any case decision, as defined in §2.2-4001, of the Boards Board or Director. The
issuance of a special order shall be considered a case decision as defined in §
2.2-4001. The Director shall not delegate his authority to impose civil
penalties in conjunction with issuance of special orders. For
purposes of this subdivision, "Boards" means
the State Air Pollution Control Board, the State Water
Control Board, and the Virginia Waste Management Board;
and
10. Perform all acts necessary or convenient to carry out the purposes of this chapter.
§10.1-1186.2. Supplemental environmental projects.
A. As used in this section, "supplemental environmental project" means an environmentally beneficial project undertaken as partial settlement of a civil enforcement action and not otherwise required by law.
B. The State Air Pollution Control
Board, the State Water Control Board, the Virginia Waste Management Board, or
the Director acting on behalf of one
of these boards the Board
or under his own authority in issuing any administrative order, or any court of
competent jurisdiction as provided for under this Code, may, in its or his
discretion and with the consent of the person subject to the order, provide for
such person to undertake one or more supplemental environmental projects. The
project shall have a reasonable geographic nexus to the violation or, if no
such project is available, shall advance at least one of the declared
objectives of the environmental law or regulation that is the basis of the
enforcement action. Performance of such projects shall be enforceable in the
same manner as any other provision of the order.
C. The following categories of projects may qualify as
supplemental environmental projects, provided the project otherwise meets the
requirements of this section: public health, pollution prevention, pollution
reduction, environmental restoration and protection, environmental compliance promotion,
and emergency planning and preparedness. In determining the appropriateness and
value of a supplemental environmental project, the following factors shall be
considered by the enforcement authority: net project costs, benefits to the
public or the environment, innovation, impact on minority or low income
low-income populations, multimedia impact, and pollution
prevention. The costs of those portions of a supplemental environmental project
that are funded by state or federal low-interest loans, contracts, or grants shall be deducted
from the net project cost in evaluating the project. In each case in which a
supplemental environmental project is included as part of a settlement, an
explanation of the project with any appropriate supporting documentation shall
be included as part of the case file.
D. Nothing in this section shall require the disclosure of documents exempt from disclosure pursuant to the Virginia Freedom of Information Act (§2.2-3700 et seq.).
E. Any decision whether or not to agree to a supplemental environmental project is within the sole discretion of the applicable board, official, or court and shall not be subject to appeal.
F. Nothing in this section shall be interpreted or applied in a manner inconsistent with applicable federal law or any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.
§10.1-1186.2:1. Impact of electric generating facilities.
A. The Department and the State Air Pollution
Control Board shall
have the authority to consider the cumulative impact of new and proposed
electric generating facilities within the Commonwealth on attainment of the
national ambient air quality standards.
B. The Department shall enter into a memorandum of agreement
with the State Corporation Commission regarding the coordination of reviews of
the environmental impacts of proposed electric generating facilities that must
obtain certificates from the State Corporation Commission. When considering the
environmental impact of any renewable energy (defined in §56-576) electrical
utility facility, the Department shall consult with interested agencies of the
Commonwealth that have expertise in natural resource management. The Department
shall submit recommendations to the State Corporation Commission that take into
account the information and comments submitted by such natural resource
agencies concerning the potential environmental impacts of the proposed
electric generating facility. The Department's recommendations shall include: (i) specific mitigation
measures considered necessary to minimize adverse environmental impacts; (ii)
any additional site-specific studies considered to be necessary; and (iii) the
scope and duration of any such studies. Nothing in this subsection shall alter
or affect the Rules of Practice and Procedure of the State Corporation
Commission.
C. Prior to the close of the Commission's record on an application for certification of an electric generating facility pursuant to § 56-580, the Department shall provide to the State Corporation Commission a list of all environmental permits and approvals that are required for the proposed electric generating facility and shall specify any environmental issues, identified during the review process, that are not governed by those permits or approvals or are not within the authority of, and not considered by, the Department or other participating governmental entity in issuing such permits or approvals. The Department may recommend to the Commission that the Commission's record remain open pending completion of any required environmental review, approval, or permit proceeding. All agencies of the Commonwealth shall provide assistance to the Department, as requested by the Director, in preparing the information required by this subsection.
§10.1-1186.3. Additional powers of Board and Department; mediation; alternative dispute resolution.
A. The State Air Pollution Control
Board, the State Water Control Board, and the Virginia Waste Management
Board, in their its
discretion, or the Director, in his discretion, may employ mediation as defined
in §8.01-581.21, or a dispute resolution proceeding as defined in §
8.01-576.4, in appropriate cases to resolve underlying issues, reach a
consensus, or compromise on contested issues. An "appropriate case"
means any process related to the development of a regulation by the Board or
the issuance of a permit by the Department in which it is apparent that there
are significant issues of disagreement among interested persons and for which
the Board or the Department finds that the use of a mediation or dispute
resolution proceeding is in the public interest. The Boards Board or the Department shall
consider not using a mediation or dispute resolution proceeding if:
1. A definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;
2. The matter involves or may bear upon significant questions of state policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the Department;
3. Maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;
4. The matter significantly affects persons or organizations who are not parties to the proceeding;
5. A full public record of the proceeding is important, and a mediation or dispute resolution proceeding cannot provide such a record; and
6. The Board or the Department must maintain continuing
jurisdiction over the matter with the authority to alter the disposition of the
matter in light of changed circumstances, and a mediation or dispute resolution
proceeding would interfere with the Department or the
Board's Board
fulfilling that requirement.
Mediation and alternative dispute resolution as authorized by
this section are voluntary procedures which that supplement rather than
limit other dispute resolution techniques available to the Boards Board or the Department.
Mediation or a dispute resolution proceeding may be employed in the issuance of
a permit only with the consent and participation of the permit applicant and
shall be terminated at the request of the permit applicant.
B. The decision to employ mediation or a dispute resolution
proceeding is in a the Board's or the
Department's sole discretion and is not subject to judicial review.
C. The outcome of any mediation or dispute resolution
proceeding shall not be binding upon a the Board or the Department, but may be considered by the
Department in issuing a permit or by a the Board in promulgating a
regulation.
D. Each The Board and the Department
shall adopt rules and regulations, in accordance with the Administrative
Process Act, for the implementation of this section. Such rules and regulations
shall include (i) standards and procedures for the conduct of mediation and
dispute resolution, including an opportunity for interested persons identified
by the Department to participate in the proceeding; (ii) the appointment and
function of a neutral, as defined in §8.01-576.4, to encourage and assist
parties to voluntarily compromise or settle contested issues; and (iii)
procedures to protect the confidentiality of papers, work product, or other materials.
E. The provisions of §8.01-576.10 concerning the
confidentiality of a mediation or dispute resolution proceeding shall govern
all such proceedings held pursuant to this section except where the Department
or a the
Board uses or relies on information obtained in the course of such proceeding
in issuing a permit or promulgating a regulation, respectively.
Nothing in this section shall create or alter any right, action, or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (§2.2-4000 et seq.), with applicable federal law or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.
§10.1-1186.4. Enforcement powers; federal court.
In addition to the authority of the State Air
Pollution Control Board, the State Water Control Board, the Virginia Waste
Management Board and the Director to bring actions in the
courts of the Commonwealth to enforce any law, regulation, case decision, or condition of a permit or
certification, the Attorney General is hereby authorized on behalf of such boards the Board
or the Director to seek to intervene pursuant to Rule 24 of the Federal Rules
of Civil Procedure in any action then pending in a federal court in order to
resolve a dispute already being litigated in that court by the United States
through the U.S.
Environmental Protection Agency.
§10.1-1187.1. Definitions.
"Board or Boards" means
the State Air Pollution Control Board, the State Water
Control Board, and the Virginia Waste Management Board.
"Department" means the
Department of Environmental Quality.
"Director" means the
Director of the Department of Environmental Quality.
"Environmental Management System" means a
comprehensive, cohesive set of documented policies and procedures adopted by a
facility or person and used to establish environmental goals, to meet and
maintain those goals, to evaluate environmental performance,
and to achieve measurable or noticeable improvements in environmental
performance, through planning, documented management and operational practices,
operational changes, self assessments self-assessments, and
management review. The term shall include "Environmental Management System"
includes, but is
not be limited to, any such system
developed in accordance with the International Standards of Operation 14001
standards.
"E2" means an environmental enterprise.
"E3" means an exemplary environmental enterprise.
"E4" means an extraordinary environmental enterprise.
"Facility" means a manufacturing, business, agricultural, or governmental site or installation involving one or more contiguous buildings or structures under common ownership or management.
"Record of sustained compliance" means that the
person or facility (i) has no judgment or conviction entered against it, or
against any key personnel of the person or facility or any person with an
ownership interest in the facility for a criminal violation of environmental
protection laws of the United States, the Commonwealth, or any other state in
the previous five years; (ii) has been neither the cause of, nor liable for,
more than two significant environmental violations in the previous three years;
(iii) has no unresolved notices of violations or potential violations of
environmental requirements with the Department or one of the
Boards the Board;
(iv) is in compliance with the terms of any order or decree, executive
compliance agreement, or related enforcement measure issued by the Department, one of the Boards the Board, or the U.S.
Environmental Protection Agency; and (v) has not demonstrated in any other way
an unwillingness or inability to comply with environmental protection
requirements.
§10.1-1187.6. Approval of alternate compliance methods.
A. To the extent consistent with federal law and
notwithstanding any other provision of law, the Air Pollution
Control Board, the Waste Management Board, and the State Water Control
Board may grant alternative compliance methods to the regulations adopted
pursuant to their its authorities, respectively, under §§
10.1-1308, 10.1-1402, and 62.1-44.15 for persons or facilities that have been
accepted by the Department as meeting the criteria for E3 and E4 facilities
under §10.1-1187.3, including but not limited to changes to monitoring and
reporting requirements and schedules, streamlined submission requirements for
permit renewals, the ability to make certain operational changes without prior
approval, and other changes that would not increase a facility's impact on the
environment. Such alternative compliance methods may allow alternative methods
for achieving compliance with prescribed regulatory standards, provided that
the person or facility requesting the alternative compliance method
demonstrates that the method will (i) meet the purpose of the applicable
regulatory standard,; (ii) promote achievement of
those purposes through increased reliability, efficiency, or cost effectiveness,;
and (iii) afford environmental protection equal to or greater than that
provided by the applicable regulatory standard. No alternative compliance
method shall be approved that would alter an ambient air quality standard,
ground water protection standard, or water quality standard and no alternative
compliance method shall be approved that would increase the pollutants released
to the environment, increase impacts to state waters, or otherwise result in a
loss of wetland acreage.
B. Notwithstanding any other provision of law, an alternate
compliance method may be approved under this section after at least 30 days'
public notice and opportunity for comment,
and a determination that the alternative compliance method meets the
requirements of this section.
C. Nothing in this section shall be interpreted or applied in
a manner inconsistent with the applicable federal law or other requirement
necessary for the Commonwealth to obtain or retain federal delegation or
approval of any regulatory program. Before approving an alternate compliance
method affecting any such program, each the Board may obtain the
approval of the federal agency responsible for such delegation or approval. Any one of the Boards The Board may
withdraw approval of the alternate compliance method at any time if any
conditions under which the alternate compliance method was originally approved
change, or if the recipient has
failed to comply with any of the alternative compliance method requirements.
D. Upon approval of the alternative compliance method under
this section, the alternative compliance method shall be incorporated into the
relevant permits as a minor permit modification with no associated fee. The permits
shall also contain any such provisions that shall go into effect in the event
that the participant fails to fulfill its obligations under the variance, or is removed from the
program for reasons specified by the Director under subsection B of §10.1-1187.4.
§10.1-1197.3. Purposes of Fund; loans to small businesses; administrative costs.
A. Moneys in the Fund shall be used to make loans or to guarantee loans to small businesses for the purchase and installation of environmental pollution control and prevention equipment certified by the Department as meeting the following requirements:
1. The air pollution control equipment is needed by the small business to comply with the federal Clean Air Act (42 U.S.C. §7401 et seq.); or
2. The pollution control equipment will allow the small business to implement voluntary pollution prevention measures.
Moneys in the Fund may also be used to make loans or to guarantee loans to small businesses for the installation of voluntary agricultural best management practices, as defined in §58.1-339.3.
B. The Department or its designated agent shall determine the terms and conditions of any loan. All loans shall be evidenced by appropriate security as determined by the Department or its designated agent. The Department, or its agent, may require any documents, instruments, certificates, or other information deemed necessary or convenient in connection with any loan from the Fund.
C. A portion of the Fund balance may be used to cover the reasonable and necessary costs of administering the Fund. Unless otherwise authorized by the Governor or his designee, the costs of administering the Fund shall not exceed a base year amount of $65,000 per year, using fiscal year 2000 as the base year, adjusted annually by the Consumer Price Index.
D. The Fund shall not be used to make loans to small
businesses for the purchase and installation of equipment needed to comply with
an enforcement action by the Department, the State Air Pollution
Control Board, the State Water Control Board, or the Virginia
Waste Management Board.
§10.1-1197.9. Enforcement; civil penalties; criminal penalties; injunctive relief.
A. Any person violating or failing, neglecting, or refusing to obey any provision of this article, any regulation, case decision, or order, or any certification or permit-by-rule condition may be compelled to comply by injunction, mandamus, or other appropriate remedy.
B. Without limiting the remedies that may be obtained under subsection A, any person violating or failing, neglecting, or refusing to obey any regulation, case decision, or order, any provision of this article, or any certification or permit-by-rule condition shall be subject, in the discretion of the court, to a civil penalty not to exceed $32,500 for each violation. Each day of violation shall constitute a separate offense. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et seq.). Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the violation occurred, to be used to abate environmental pollution in such manner as the court may, by order, direct, except that where the person in violation is the county, city, or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund pursuant to Chapter 25.
C. 1. Nothing in this article shall affect the enforcement
authorities in laws administered by the State Air Pollution Control
Board, the State Water Control Board, or the Virginia Waste Management
Board or the Department, nor shall
it affect enforcement authorities of the Department as described in §
10.1-1186.
2. The Department is authorized to issue orders to require any
person to comply with the provisions of this article, any condition of a permit
by rule or certification, or any regulations promulgated by the Department or
to comply with any order or case decision, as defined in §2.2-4001, of the
Department. Any such order shall be issued only after a proceeding or hearing
in accordance with §2.2-4019 or 2.2-4020 with reasonable notice to the
affected person of the time, place and purpose thereof. The provisions of this
section shall not affect the authority of the Department to issue separate
orders and regulations to meet any emergency as described in subsection C subdivision 5.
3. With the consent of any person who has violated or failed,
neglected or refused to obey any regulation or order of the Department, any
condition of a permit by rule, certification or any provision of this article,
the Department may provide, in an order issued by the Department against such
person, for the payment of civil charges for past violations in specific sums,
not to exceed the limits specified in this section. Such civil charges shall be
levied instead of any appropriate civil penalty, which could be imposed under
this section. Such civil charges shall be paid into the state treasury and
deposited by the State Treasurer into the Virginia Environmental Emergency
Response Fund pursuant to Chapter 25 of this title (§10.1-2500 et seq.).
4. In addition to all other available remedies, the Department may issue administrative orders for the violation of (i) any law or regulation administered by the Department; (ii) any condition of a permit by rule or certificate issued pursuant to this article; or (iii) any case decision or order of the Department. Issuance of an administrative order shall be a case decision as defined in §2.2-4001 and shall be issued only after a hearing before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020. Orders issued pursuant to this subsection may include civil penalties of up to $32,500 per violation not to exceed $100,000 per order, and may compel the taking of corrective actions or the cessation of any activity upon which the order is based. The Department may assess penalties under this subsection if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Department or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with this subsection. The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Department shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subsection. Penalties shall be paid to the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.). The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in §2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination. Orders issued pursuant to this subsection shall become effective five days after having been delivered to the affected persons or mailed by certified mail to the last known address of such persons. The Department shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.
5. Should the Department find that any person is grossly
affecting the public health, safety, or
welfare, or the health of animals, fish, or
aquatic life or the environment, or such effects are imminent, the Department
shall issue, without a hearing, an emergency administrative order directing the
person to cease the activity immediately and undertake any needed corrective
action, and shall within 10 days hold
a hearing, after reasonable notice as to the time and place thereof to the
person, to affirm, modify, amend, or
cancel the emergency administrative order. If the Department finds that a
person who has been issued an administrative order or an emergency
administrative order is not complying with the order's terms, the Department
may utilize the enforcement and penalty provisions of this article to secure
compliance.
6. The Department shall be entitled to an award of reasonable attorneys'
attorney fees and costs in any action brought by the
Department under this article in which it substantially prevails on the merits
of the case, unless special circumstances would make an award unjust.
D. Any person willfully violating or refusing, failing, or
neglecting to comply with any provision of this article or any regulation,
permit by rule, order, or certification under this article shall
be is
guilty of a Class 1 misdemeanor unless a different penalty is specified.
E. In addition to the penalties provided above, any person who
knowingly violates or refuses, fails, or neglects to comply with any provision
of this article or any regulation, permit by rule, order, or certification
under this article shall be is guilty of a felony punishable
by a term of imprisonment of not less than one year nor more than five years
and a fine of not more than $32,500 for each violation, either or both. The
provisions of this subsection shall be deemed to constitute a lesser included
offense of the violation set forth under subsection F.
F. Any person who knowingly violates or refuses, fails, or
neglects to comply with any provision of this article or any regulation, permit
by rule, order, or certification under this article and who knows at the time
that he thereby places another person in imminent danger of death or serious
bodily injury, shall,
upon conviction, be is guilty of a felony
punishable by a term of imprisonment of not less than two years nor more than
15 years and a fine of not more than $250,000, either or both. A defendant that
is not an individual shall, upon conviction of violating this section, be
subject to a fine not exceeding the greater of $1 million or an amount that is
three times the economic benefit realized by the defendant as a result of the
offense. The maximum penalty shall be doubled with respect to both fine and
imprisonment for any subsequent conviction of the same person.
G. Criminal prosecutions under this article shall be commenced within three years after discovery of the offense, notwithstanding the provisions of any other statute.
§10.1-1230. Definitions.
As used in this chapter:
"Authority" means the Virginia Resources Authority.
"Board" means the Board of Environmental Resources.
"Bona fide prospective purchaser" means a person or a tenant of a person who acquires ownership, or proposes to acquire ownership, of real property after the release of hazardous substances occurred.
"Brownfield" means real property; the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.
"Cost" as applied to any project financed under the provisions of this chapter, means the reasonable and necessary costs incurred for carrying out all works and undertakings necessary or incident to the accomplishment of any project. It includes, without limitation, all necessary developmental, planning and feasibility studies, surveys, plans and specifications; architectural, engineering, financial, legal or other special services; site assessments, remediation, containment, and demolition or removal of existing structures; the costs of acquisition of land and any buildings and improvements thereon, including the discharge of any obligation of the seller of such land, buildings or improvements; labor; materials, machinery and equipment; the funding of accounts and reserves that the Authority may require; the reasonable costs of financing incurred by the local government in the course of the development of the project; carrying charges incurred prior to completion of the project, and the cost of other items that the Authority determines to be reasonable and necessary.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Fund" means the Virginia Brownfields Restoration and Economic Redevelopment Assistance Fund.
"Innocent land owner" means a person who holds any title, security interest or any other interest in a brownfield site and who acquired ownership of the real property after the release of hazardous substances occurred.
"Local government" means any county, city, town, municipal corporation, authority, district, commission, or political subdivision of the Commonwealth created by the General Assembly or otherwise created pursuant to the laws of the Commonwealth or any combination of the foregoing.
"Partnership" means the Virginia Economic Development Partnership.
"Person" means an individual, corporation, partnership, association, governmental body, municipal corporation, public service authority, or any other legal entity.
"Project" means all or any part of the following activities necessary or desirable for the restoration and redevelopment of a brownfield site: (i) environmental or cultural resource site assessments, (ii) monitoring, remediation, cleanup, or containment of property to remove hazardous substances, hazardous wastes, solid wastes or petroleum, (iii) the lawful and necessary removal of human remains, the appropriate treatment of grave sites, and the appropriate and necessary treatment of significant archaeological resources, or the stabilization or restoration of structures listed on or eligible for the Virginia Historic Landmarks Register, (iv) demolition and removal of existing structures, or other site work necessary to make a site or certain real property usable for economic development, and (v) development of a remediation and reuse plan.
§10.1-1232. Voluntary Remediation Program.
A. The Virginia Waste Management
Board shall promulgate regulations to allow persons who own, operate, have a
security interest in, or
enter into a contract for the purchase of contaminated property to voluntarily
remediate releases of hazardous substances, hazardous wastes, solid wastes, or
petroleum. The regulations shall apply where remediation has not clearly been
mandated by the United States U.S. Environmental Protection
Agency, the Department, or
a court pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. §9601 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. §6901 et seq.), the Virginia Waste Management Act (§
10.1-1400 et seq.), the State Water Control Law (§62.1-44.2 et seq.), or other
applicable statutory or common law or where jurisdiction of those statutes has
been waived. The regulations shall provide for the following:
1. The establishment of methodologies to determine site-specific risk-based remediation standards, which shall be no more stringent than applicable or appropriate relevant federal standards for soil, groundwater and sediments, taking into consideration scientific information regarding the following: (i) protection of public health and the environment, (ii) the future industrial, commercial, residential, or other use of the property to be remediated and of surrounding properties, (iii) reasonably available and effective remediation technology and analytical quantitation technology, (iv) the availability of institutional or engineering controls that are protective of human health or the environment, and (v) natural background levels for hazardous constituents;
2. The establishment of procedures that minimize the delay and expense of the remediation, to be followed by a person volunteering to remediate a release and by the Department in processing submissions and overseeing remediation;
3. The issuance of certifications of satisfactory completion of remediation, based on then-present conditions and available information, where voluntary cleanup achieves applicable cleanup standards or where the Department determines that no further action is required;
4. Procedures to waive or expedite issuance of any permits required to initiate and complete a voluntary cleanup consistent with applicable federal law; and
5. Registration fees to be collected from persons conducting voluntary remediation to defray the actual reasonable costs of the voluntary remediation program expended at the site.
B. Persons conducting voluntary remediations pursuant to an agreement with the Department entered into prior to the promulgation of those regulations may elect to complete the cleanup in accordance with such an agreement or the regulations.
C. Certification of satisfactory completion of remediation
shall constitute immunity to an enforcement action under
Chapter 13 (§10.1-1300 et seq.), the Virginia Waste
Management Act (§10.1-1400 et seq.), the State Water Control Law (§62.1-44.2
et seq.), Chapter 13 (§10.1-1300 et seq.) of this title,
or any other applicable law.
D. At the request of a person who owns, operates, holds a security interest in, or contracts for the purchase of property from which the contamination to be voluntarily remediated originates, the Department is authorized to seek temporary access to private and public property not owned by such person conducting the voluntary remediation as may be reasonably necessary for such person to conduct the voluntary remediation. Such request shall include a demonstration that the person requesting access has used reasonable effort to obtain access by agreement with the property owner. Such access, if granted, shall be granted for only the minimum amount of time necessary to complete the remediation and shall be exercised in a manner that minimizes the disruption of ongoing activities and compensates for actual damages. The person requesting access shall reimburse the Commonwealth for reasonable, actual, and necessary expenses incurred in seeking or obtaining access. Denial of access to the Department by a property owner creates a rebuttable presumption that such owner waives all rights, claims, and causes of action against the person volunteering to perform remediation for costs, losses, or damages related to the contamination as to claims for costs, losses, or damages arising after the date of such denial of access to the Department. A property owner who has denied access to the Department may rebut the presumption by showing that he had good cause for the denial or that the person requesting that the Department obtain access acted in bad faith.
§10.1-1234. Limitations on liability.
A. The Director may, consistent with programs developed under
the federal acts, make a determination to limit the liability of lenders,
innocent purchasers or landowners, de minimis contributors,
or others who have grounds to claim limited responsibility for a containment or
cleanup that may be required pursuant to the State Air Pollution
Control Law (§10.1-1300 et seq.), the Virginia Waste
Management Act (§10.1-1400 et seq.), the State Water Control Law (§62.1-44.2
et seq.), the State Air Pollution Control Law (§10.1-1300
et seq.), or any other applicable law.
B. A bona fide prospective purchaser shall not be held liable
for a containment or cleanup that may be required at a brownfield site pursuant
to the State Air Pollution Control Law (§10.1-1300
et seq.), the Virginia Waste Management Act (§10.1-1400 et
seq.), or the State Water Control Law
(§62.1-44.2 et seq.), or the State Air
Pollution Control Law (§10.1-1300 et seq.) if (i) the
person did not cause, contribute, or consent to the release or threatened
release,;
(ii) the person is not liable or potentially liable through any direct or
indirect familial relationship or any contractual, corporate, or financial
relationship or is not the result of a reorganization of a business entity that
was potentially liable,; (iii) the person exercises
appropriate care with respect to hazardous substances found at the facility by
taking reasonable steps to stop any continuing release, prevent any threatened
future release, and prevent or limit human, environmental, or natural resource
exposure to any previously released hazardous substances,; and (iv) the person does not
impede the performance of any response action. These provisions shall not apply
to sites subject to the Resource Conservation and Recovery Act (42 U.S.C. §
6901 et seq.).
C. An innocent land owner who holds title, security interest, or any other interest in a
brownfield site shall not be held liable for a containment or cleanup that may
be required at a brownfield site pursuant to the
State Air Pollution Control Law (§10.1-1300 et seq.), the
Virginia Waste Management Act (§10.1-1400 et seq.), or
the State Water Control Law (§62.1-44.2 et seq.), or the
State Air Pollution Control Law (§10.1-1300 et seq.) if
(i) the person did not cause, contribute, or consent to the release or
threatened release,; (ii) the person is not liable
or potentially liable through any direct or indirect familial relationship or
any contractual, corporate, or financial relationship or is not the result of a
reorganization of a business entity that was potentially liable,;
(iii) the person made all appropriate inquiries into the previous uses of the
facility in accordance with generally accepted good commercial and customary
standards and practices, including those established by federal law,;
(iv) the person exercises appropriate care with respect to hazardous substances
found at the facility by taking reasonable steps to stop any continuing release,
prevent any threatened future release, and prevent or limit human,
environmental, or natural resource exposure to any previously released
hazardous substances,; and (v) the person does not
impede the performance of any response action and if either (a) at the time the
person acquired the interest, he did not know and had no reason to know that
any hazardous substances had been or were likely to have been disposed of on,
in, or at the site, or
(b) the person is a government entity that acquired the site by escheat or
through other involuntary transfer or acquisition. These provisions shall not
apply to sites subject to the Resource Conservation and Recovery Act (42 U.S.C.
§6901 et seq.).
D. A person that owns real property that is contiguous to or
otherwise similarly situated with respect to, and that is or may be
contaminated by a release or threatened release of a hazardous substance from
real property that is not owned by that person shall not be considered liable
for a containment or cleanup that may be required pursuant to the State Air Pollution Control Law (§10.1-1300
et seq.), the Virginia Waste Management
Act (§10.1-1400 et seq.), or
the State Water Control Law (§62.1-44.2 et seq.), or the
State Air Pollution Control Law (§10.1-1300 et seq.) if
the person did not cause, contribute, or consent to the release or threatened
release, the person is not liable or potentially liable through any direct or
indirect familial relationship or any contractual, corporate, or financial
relationship or is not the result of a reorganization of a business entity that
was potentially liable, and if such person provides full cooperation,
assistance, and access to persons that
are authorized to conduct response actions at the facility from which there has
been a release.
E. The provisions of this section shall not otherwise limit
the authority of the Department, the State Water Control
Board, the Virginia Waste Management Board, or the State Air Pollution Control
Board to require any person responsible for the contamination or pollution to
contain or clean-up sites where solid or hazardous waste or other substances
have been improperly managed.
§10.1-1236. Access to abandoned brownfield sites.
A. Any local government or agency of the Commonwealth may apply to the appropriate circuit court for access to an abandoned brownfield site in order to investigate contamination, to abate any hazard caused by the improper management of substances within the jurisdiction of the Board, or to remediate the site. The petition shall include (i) a demonstration that all reasonable efforts have been made to locate the owner, operator or other responsible party and (ii) a plan approved by the Director and which is consistent with applicable state and federal laws and regulations. The approval or disapproval of a plan shall not be considered a case decision as defined by §2.2-4001.
B. Any person, local government, or agency of the Commonwealth
not otherwise liable under federal or state law or regulation who performs any
investigative, abatement, or
remediation activities pursuant to this section shall not become subject to
civil enforcement or remediation action under
Chapter 14 the Virginia Waste
Management Act (§10.1-1400 et seq.) of
this title or other applicable state laws or to private
civil suits related to contamination not caused by its investigative, abatement, or remediation activities.
C. This section shall not in any way limit the authority of
the Virginia Waste Management
Board, the Director, or the Department otherwise created by Chapter 14 (§10.1-1400 et
seq.) of this title.
§10.1-1300. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Advisory Board" means the State Advisory Board on Air Pollution.
"Air pollution" means the presence in the outdoor
atmosphere of one or more substances which that are or may be harmful or
injurious to human health, welfare, or
safety, to animal or plant life, or to property, or which unreasonably
interfere with the enjoyment by the people of life or property.
"Board" means the State Air
Pollution Control Board of
Environmental Resources.
"Department" means the Department of Environmental Quality.
"Director" or "Executive Director" means the Executive Director of the Department of Environmental Quality.
"Owner" shall have no connotation other than that customarily assigned to the term "person," but shall include bodies politic and corporate, associations, partnerships, personal representatives, trustees, and committees, as well as individuals.
"Person" means an individual, corporation,
partnership, association, a
governmental body, a
municipal corporation, or any other legal entity.
"Special order" means a special order issued under § 10.1-1309.
"Wood heater" means a wood stove, pellet stove, wood-fired hydronic heater, wood-burning forced-air furnace, or masonry wood heater, any of which is solely designed for heating a home or a business and with either (i) uncontrolled fine particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5) emissions of less than 10 tons per year or with a maximum heat input of less than 1,000,000 Btu/hr or (ii) uncontrolled fine particulate matter with an aerodynamic diameter less than or equal to 10 micrometers (PM10) emissions of less than 15 tons per year or with a maximum heat input of less than 1,000,000 Btu/hr.
§10.1-1400. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Advanced recycling" means a manufacturing process for the conversion of post-use polymers and recovered feedstocks into basic hydrocarbon raw materials, feedstocks, chemicals, liquid fuels, waxes, lubricants, or other products through processes that include pyrolysis, gasification, depolymerization, reforming, hydrogenation, solvolysis, catalytic cracking, and similar processes. "Advanced recycling" produces recycled products, including monomers, oligomers, plastics, plastics and chemical feedstocks, basic and unfinished chemicals, crude oil, naphtha, liquid transportation fuels, coatings, waxes, lubricants, and other basic hydrocarbons.
"Advanced recycling facility" means a facility that, using advanced recycling, receives, stores, and converts post-use polymers and recovered feedstocks that it receives. An "advanced recycling facility" shall be subject to all applicable federal and state environmental laws and regulations.
"Applicant" means any and all persons seeking or holding a permit required under this chapter.
"Board" means the Virginia
Waste Management Board of
Environmental Resources.
"Composting" means the manipulation of the natural aerobic process of decomposition of organic materials to increase the rate of decomposition.
"Department" means the Department of Environmental Quality.
"Depolymerization" means a manufacturing process in which post-use polymers are broken into smaller molecules, including monomers and oligomers; raw, intermediate, or final products; plastics and chemical feedstocks; basic and unfinished chemicals; crude oil; naphtha; liquid transportation fuels; waxes; lubricants; coatings; and other products.
"Director" means the Director of the Department of Environmental Quality.
"Disclosure statement" means a sworn statement or affirmation, in such form as may be required by the Director, which includes:
1. The full name and business address of all key personnel;
2. The full name and business address of any entity, other than a natural person, that collects, transports, treats, stores, or disposes of solid waste or hazardous waste in which any key personnel holds an equity interest of five percent or more;
3. A description of the business experience of all key personnel listed in the disclosure statement;
4. A listing of all permits or licenses required for the collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste issued to or held by any key personnel within the past 10 years;
5. A listing and explanation of any notices of violation, prosecutions, administrative orders (whether by consent or otherwise), license or permit suspensions or revocations, or enforcement actions of any sort by any state, federal, or local authority, within the past 10 years, that are pending or have concluded with a finding of violation or entry of a consent agreement, regarding an allegation of civil or criminal violation of any law, regulation, or requirement relating to the collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste by any key personnel, and an itemized list of all convictions within 10 years of key personnel of any of the following crimes punishable as felonies under the laws of the Commonwealth or the equivalent thereof under the laws of any other jurisdiction: murder; kidnapping; gambling; robbery; bribery; extortion; criminal usury; arson; burglary; theft and related crimes; forgery and fraudulent practices; fraud in the offering, sale, or purchase of securities; alteration of motor vehicle identification numbers; unlawful manufacture, purchase, use or transfer of firearms; unlawful possession or use of destructive devices or explosives; violation of the Drug Control Act (§54.1-3400 et seq.); racketeering; or violation of antitrust laws;
6. A listing of all agencies outside the Commonwealth that have regulatory responsibility over the applicant or have issued any environmental permit or license to the applicant within the past 10 years, in connection with the applicant's collection, transportation, treatment, storage, or disposal of solid waste or hazardous waste;
7. Any other information about the applicant and the key personnel that the Director may require that reasonably relates to the qualifications and ability of the key personnel or the applicant to lawfully and competently operate a solid waste management facility in Virginia; and
8. The full name and business address of any member of the local governing body or planning commission in which the solid waste management facility is located or proposed to be located, who holds an equity interest in the facility.
"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
"Equity" includes both legal and equitable interests.
"Federal acts" means any act of Congress providing for waste management and regulations promulgated thereunder.
"Gasification" means a manufacturing process through which recovered feedstocks are heated and converted in an oxygen-deficient atmosphere into a fuel and gas mixture that is then converted to crude oil, diesel fuel, gasoline, home heating oil, ethanol, transportation fuel, other fuels, chemicals, waxes, lubricants, chemical feedstocks, diesel and gasoline blendstocks, or other valuable raw, intermediate, or final products that are returned to economic utility in the form of raw materials, products, or fuels.
"Hazardous material" means a substance or material in a form or quantity that may pose an unreasonable risk to health, safety, or property when transported, and which the U.S. Secretary of Transportation has so designated by regulation or order.
"Hazardous substance" means a substance listed under the federal Comprehensive Environmental Response Compensation and Liability Act, P.L. 96-510.
"Hazardous waste" means a solid waste or combination of solid waste that because of its quantity, concentration or physical, chemical, or infectious characteristics may:
1. Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating illness; or
2. Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
"Hazardous waste generation" means the act or process of producing hazardous waste.
"Household hazardous waste" means any waste material derived from households (including single and multiple residences, hotels, motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas) which, except for the fact that it is derived from a household, would be classified as a hazardous waste, including nickel, cadmium, mercuric oxide, manganese, zinc-carbon or lead batteries; solvent-based paint, paint thinner, paint strippers, or other paint solvents; any product containing trichloroethylene, toxic art supplies, used motor oil and unusable gasoline or kerosene, fluorescent or high intensity light bulbs, ammunition, fireworks, banned pesticides, or restricted-use pesticides as defined in §3.2-3900. All empty household product containers and any household products in legal distribution, storage, or use shall not be considered household hazardous waste.
"Key personnel" means the applicant itself and any person employed by the applicant in a managerial capacity, or empowered to make discretionary decisions, with respect to the solid waste or hazardous waste operations of the applicant in Virginia, but does not include employees exclusively engaged in the physical or mechanical collection, transportation, treatment, storage, or disposal of solid or hazardous waste and such other employees as the Director may designate by regulation. If the applicant has not previously conducted solid waste or hazardous waste operations in Virginia, "key personnel" also includes any officer, director, or partner of the applicant, or any holder of five percent or more of the equity or debt of the applicant. If any holder of five percent or more of the equity or debt of the applicant or of any key personnel is not a natural person, "key personnel" includes all key personnel of that entity, provided that where such entity is a chartered lending institution or a reporting company under the Federal Securities Exchange Act of 1934, "key personnel" does not include key personnel of such entity. Provided further that "key personnel" means the chief executive officer of any agency of the United States or of any agency or political subdivision of the Commonwealth and all key personnel of any person, other than a natural person, that operates a landfill or other facility for the disposal, treatment, or storage of nonhazardous solid waste under contract with or for one of those governmental entities.
"Manifest" means the form used for identifying the quantity, composition, origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage of such hazardous waste.
"Mixed radioactive waste" means radioactive waste that contains a substance that renders the mixture a hazardous waste.
"Open dump" means a site on which any solid waste is placed, discharged, deposited, injected, dumped, or spilled so as to create a nuisance or present a threat of a release of harmful substances into the environment or present a hazard to human health.
"Person" includes an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.
"Post-use polymer" means a plastic polymer that:
1. Is derived from any industrial, commercial, agricultural, or domestic activity.
2. Is processed at an advanced recycling facility or held at such facility prior to processing.
3. Is used or intended for use as a feedstock to manufacture crude oil, fuels, feedstocks, blendstocks, raw materials, or other intermediate products or final products, using advanced recycling.
4. Is not mixed with solid waste or hazardous waste on site or during processing at the advanced recycling facility at which it is processed.
5. Has been sorted from solid waste and other regulated waste but may contain residual amounts of (i) solid wastes, such as organic material, and (ii) incidental contaminants or impurities, such as paper labels or metal rings.
"Pyrolysis" means a manufacturing process through which post-use polymers are heated in the absence of oxygen until melted and thermally decomposed and are then cooled, condensed, and converted to crude oil, diesel fuel, gasoline, home heating oil, ethanol, transportation fuel, other fuels, chemicals, waxes, lubricants, chemical feedstocks, diesel and gasoline blendstocks, or other valuable raw, intermediate, or final products that are returned to economic utility in the form of raw materials, products, or fuels.
"Radioactive waste" or "nuclear waste" includes:
1. "Low-level radioactive waste" material that:
a. Is not high-level radioactive waste, spent nuclear fuel, transuranic waste, or by-product material as defined in §11(e)(2) of the Atomic Energy Act of 1954 (42 U.S.C. §2014(e)(2)); and
b. The Nuclear Regulatory Commission, consistent with existing law, classifies as low-level radioactive waste; or
2. "High-level radioactive waste," which means:
a. The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and
b. Other highly radioactive material that the Nuclear Regulatory Commission, consistent with existing law, determines by rule requires permanent isolation.
"Recovered feedstock" means one or more of the following materials that has been processed so that it can be used as feedstock in an advanced recycling facility:
1. Post-use polymers.
2. Materials for which the U.S. Environmental Protection Agency has made a nonwaste determination under 40 C.F.R. §241.3(c) or has otherwise determined are feedstocks and not solid waste.
"Recovered feedstock" does not include unprocessed municipal solid waste and is not mixed with solid waste or hazardous waste on site or during processing at an advanced recycling facility.
"Recycling residue" means the (i) nonmetallic substances, including plastic, rubber, and insulation, that remain after a shredder has separated for purposes of recycling the ferrous and nonferrous metal from a motor vehicle, appliance, or other discarded metallic item and (ii) organic waste remaining after removal of metals, glass, plastics, and paper that are to be recycled as part of a resource recovery process for municipal solid waste resulting in the production of a refuse derived fuel.
"Resource conservation" means reduction of the amounts of solid waste that are generated, reduction of overall resource consumption, and utilization of recovered resources.
"Resource recovery" means the recovery of material or energy from solid waste.
"Resource recovery system" means a solid waste management system that provides for collection, separation, recycling, and recovery of solid wastes, including disposal of nonrecoverable waste residues.
"Sanitary landfill" means a disposal facility for solid waste so located, designed, and operated that it does not pose a substantial present or potential hazard to human health or the environment, including pollution of air, land, surface water, or ground water.
"Sludge" means any solid, semisolid, or liquid wastes with similar characteristics and effects generated from a public, municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, air pollution control facility, or any other waste-producing facility.
"Solid waste" means any garbage, refuse, sludge, and
other discarded material, including solid, liquid, semisolid, or contained
gaseous material, resulting from industrial, commercial, mining, and
agricultural operations, or community activities, but does not include (i)
solid or dissolved material in domestic sewage; (ii) solid or dissolved
material in irrigation return flows or in industrial discharges that are
sources subject to a permit from the State Water Control Board Department; (iii) source,
special nuclear, or by-product material as defined by the Federal Atomic Energy
Act of 1954, as amended; or (iv) post-use polymers or recovered feedstocks that
are (a) processed at an advanced recycling facility or (b) held at or held for
the purpose of conversion at such advanced recycling facility prior to
conversion.
"Solid waste management facility" means a site used for planned treating, long-term storage, or disposing of solid waste. A "solid waste management facility" may consist of several treatment, storage, or disposal units.
"Solvolysis" means a manufacturing process through which post-use polymers are purified with the aid of solvents, allowing additives and contaminants to be removed. The products of solvolysis are polymers capable of being recycled or reused without first being reverted to a monomer. "Solvolysis" includes hydrolysis, aminolysis, ammonolysis, methanolysis, and glycolysis.
"Transport" or "transportation" means any movement of property and any packing, loading, or unloading or storage incidental thereto.
"Treatment" means any method, technique, or process, including incineration or neutralization, designed to change the physical, chemical, or biological character or composition of any waste to neutralize it or to render it less hazardous or nonhazardous, safer for transport, amenable to recovery or storage, or reduced in volume.
"Vegetative waste" means decomposable materials generated by yard and lawn care or land-clearing activities and includes, but is not limited to, leaves, grass trimmings, and woody wastes such as shrub and tree prunings, bark, limbs, roots, and stumps.
"Waste" means any solid, hazardous, or radioactive waste as defined in this section.
"Waste management" means the collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of waste or resource recovery. "Waste management" does not include pyrolysis, gasification, depolymerization, solvolysis, or any other advanced recycling process if the source materials used in such process are composed of post-use polymers or recovered feedstocks.
"Yard waste" means decomposable waste materials generated by yard and lawn care and includes leaves, grass trimmings, brush, wood chips, and shrub and tree trimmings. "Yard waste" does not include roots or stumps that exceed six inches in diameter.
§10.1-1402.2. Virginia Waste Management Permit Program Fund; use of moneys.
A. There is hereby established a special, nonreverting fund in
the state treasury to be known as the Virginia Waste Management Board Permit Program Fund,
hereafter referred to as the Fund. Notwithstanding the provisions of §
2.2-1802, all moneys collected pursuant to subdivision 16 of §10.1-1402 shall
be paid into the state treasury to the credit of the Fund.
B. Any moneys remaining in the Fund shall not revert to the general fund but shall remain in the Fund. Interest earned on such moneys shall remain in the Fund and be credited to it.
C. The Board is authorized and empowered to release moneys from the Fund, on warrants issued by the State Comptroller, for the purposes of recovering portions of the costs of processing applications under subdivision 16 of §10.1-1402 under the direction of the Director.
D. An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller and furnished upon request to the Governor or the General Assembly.
§10.1-1408.5. Special provisions regarding wetlands.
A. The Director shall not issue any solid waste permit for a new municipal solid waste landfill or the expansion of a municipal solid waste landfill that would be sited in a wetland, provided that this subsection shall not apply to subsection B or the (i) expansion of an existing municipal solid waste landfill located in the City of Danville or the City of Suffolk when the owner or operator of the landfill is an authority created pursuant to § 15.2-5102 that has applied for a permit under §404 of the federal Clean Water Act, 33 U.S.C. §1251 et seq. prior to January 1, 1989, and the owner or operator has received a permit under §404 of the federal Clean Water Act and the Virginia Water Resources and Wetlands Protection Program, Article 2.2 (§62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1, or (ii) construction of a new municipal solid waste landfill in Mecklenburg County and provided that the municipal solid waste landfills covered under clauses (i) and (ii) have complied with all other applicable federal and state environmental laws and regulations. It is expressly understood that while the provisions of this section provide an exemption to the general siting prohibition contained herein; it is not the intent in so doing to express an opinion on whether or not the project should receive the necessary environmental and regulatory permits to proceed. For the purposes of this section, the term "expansion of a municipal solid waste landfill" shall include the siting and construction of new cells or the expansion of existing cells at the same location.
B. The Director may issue a solid waste permit for the
expansion of a municipal solid waste landfill located in a wetland only if the
following conditions are met: (i) the proposed landfill site is at least 100
feet from any surface water body and at least one mile from any tidal wetland;
(ii) the Director determines, based upon the existing condition of the wetland
system, including, but not limited to, sedimentation, toxicity, acidification,
nitrification, vegetation, and proximity to existing permitted waste disposal
areas, roads or other structures, that the construction or restoration of a
wetland system in another location in accordance with a Virginia Water
Protection Permit approved by the State Water Control Department or a general permit issued as a
regulation by the Board would provide higher quality
wetlands; and (iii) the permit requires a minimum two-to-one wetlands
mitigation ratio. This subsection shall not apply to the exemptions provided in
clauses (i) and (ii) of subsection A.
C. Ground water monitoring shall be conducted at least quarterly by the owner or operator of any existing solid waste management landfill, accepting municipal solid waste, that was constructed on a wetland, has a potential hydrologic connection to such a wetland in the event of an escape of liquids from the facility, or is within a mile of such a wetland, unless the Director determines that less frequent monitoring is necessary. This provision shall not limit the authority of the Board or the Director to require that monitoring be conducted more frequently than quarterly. If the landfill is one that accepts only ash, ground water monitoring shall be conducted semiannually, unless more frequent monitoring is required by the Board or the Director. All results shall be reported to the Department.
D. This section shall not apply to landfills which impact less than two acres of nontidal wetlands.
E. For purposes of this section, "wetland" means any tidal wetland or nontidal wetland contiguous to any tidal wetland or surface water body.
F. There shall be no additional exemptions granted from this section unless (i) the proponent has submitted to the Department an assessment of the potential impact to wetlands, the need for the exemption, and the alternatives considered and (ii) the Department has made the information available for public review for at least 60 days prior to the first day of the next Regular Session of the General Assembly.
§10.1-1450. Board to promulgate regulations regarding hazardous materials.
The Board shall promulgate regulations designating the manner and method by which hazardous materials shall be loaded, unloaded, packed, identified, marked, placarded, stored, and transported. Such regulations shall be no more restrictive than any applicable federal laws or regulations.
§10.1-1454.1. Regulation of wastes transported by water.
A. The Board shall develop regulations governing the commercial transport, loading and off-loading of nonhazardous solid waste (except scrap metal, dredged material, recyclable construction demolition debris being transported directly to a processing facility for recycling or reuse, and source-separated recyclables), municipal and industrial sludge, and regulated medical waste by ship, barge or other vessel upon the navigable waters of the Commonwealth as are necessary to protect the health, safety, and welfare of the citizens of the Commonwealth and to protect the Commonwealth's environment and natural resources from pollution, impairment or destruction. Included in the regulations shall be provisions governing (i) the issuance of permits by rule to facilities receiving nonhazardous solid waste (except scrap metal, dredged material, recyclable construction demolition debris being transported directly to a processing facility for recycling or reuse, and source-separated recyclables), municipal and industrial sludge, and regulated medical waste from a ship, barge or other vessel transporting such wastes upon the navigable waters of the Commonwealth and (ii) to the extent allowable under federal law and regulation, the commercial transport of nonhazardous solid wastes (except scrap metal, dredged material, recyclable construction demolition debris being transported directly to a processing facility for recycling or reuse, and source-separated recyclables), municipal and industrial sludge, and regulated medical waste upon the navigable waters of the Commonwealth and the loading and off-loading of ships, barges and other vessels transporting such waste.
B. 1. Included in the regulations shall be requirements, to
the extent allowable under federal law, that: (a) (i) containers holding wastes
be watertight and be designed, constructed, secured and maintained so as to
prevent the escape of wastes, liquids and odors and to prevent the loss or
spillage of wastes in the event of an accident; (b) (ii) containers be tested at
least two times a year and be accompanied by a certification from the container
owner that such testing has shown that the containers are watertight; (c) (iii)
each container be listed on a manifest designed to assure that the waste being
transported in each container is suitable for the destination facility; and (d) (iv)
containers be secured to the barges to prevent accidents during transportation,
loading and unloading.
2. For the purposes of this section and the regulations
promulgated hereunder, a container shall satisfy clauses (a) (i) and (b) (ii) of subdivision B 1,
if it meets the following requirements:
a. Each container shall be certified for special service by a Delegated Approval Authority approved by the U.S. Coast Guard in accordance with 49 CFR Parts 450 through 453 as having met the requirements for the approval of prototype containers described in §§1.5 and 1.17.2 of the Rules for Certification of Cargo Containers, 1998, American Bureau of Shipping, including a special container prototype test as follows: a minimum internal head of three inches of water shall be applied to all sides, seams, bottom and top of the container for at least 15 minutes of each side, seam, bottom and top, during which the container shall remain free from the escape of water.
b. Each container shall be certified by the Delegated Approval Authority as having passed the following test when the container is placed in service and at least once every six months thereafter while it remains in service:
(1) Each container shall have a minimum internal head of 24
inches of water applied to the container in an upright position for at least 15
minutes during which the container shall remain free from the escape of water.
All wastewater and contaminated water resulting from this test procedure shall
be disposed of in compliance with the applicable regulations of the State Water Control Board.
(2) Each container shall be visually inspected for damage on all sides, plus the top and bottom, and shall have no visible holes, gaps, or structural damage affecting its integrity or performance.
c. Following each unloading of solid waste from a container, each container shall be visually inspected, as practical, at the solid waste management facility immediately upon unloading for damage on all sides, plus top and bottom, and shall have no visible holes, gaps, or structural damage affecting its integrity or performance.
3. It shall be a violation of this chapter if during
transportation, holding, or storage operations, or in the event of an accident,
there is an:
(i) entry of liquids into a container; (ii) escape, loss, or spillage of wastes
or liquids from a container; or (iii) escape of odors from a container.
C. A facility utilized to receive nonhazardous solid waste (except scrap metal, dredged material, recyclable construction demolition debris being transported directly to a processing facility for recycling or reuse, and source-separated recyclables), municipal and industrial sludge, or regulated medical waste from a ship, barge or other vessel regulated pursuant to subsection A, arriving at the facility upon the navigable waters of the Commonwealth, is a solid waste management facility and is subject to the requirements of this chapter. On and after the effective date of the regulations promulgated under subsection A, no new or existing facilities shall receive any wastes regulated under subsection A from a ship, barge, or other vessel without a permit issued in accordance with the Board's regulations.
D. 1. The Board shall, by regulation, establish a fee schedule, payable by the owner or operator of any ship, barge, or other vessel carrying, loading, or off-loading waste regulated under this article on the navigable waters of the Commonwealth, for the purpose of funding the administrative and enforcement costs of this article associated with such operations including, but not limited to, the inspection and monitoring of such ships, barges, or other vessels to ensure compliance with this article, and for funding activities authorized by this section to abate pollution caused by barging of waste, to improve water quality, or for other waste-related purposes.
2. The owner or operator of a facility permitted to receive wastes regulated under this article from a ship, barge or other vessel shall be assessed a permit fee in accordance with the criteria set forth in § 10.1-1402.1. However, such fees shall also include an additional amount to cover the Department's costs for facility inspections that it shall conduct on at least a quarterly basis.
3. The fees collected pursuant to this article shall be
deposited into a separate account within the Virginia Waste Management Board Permit Program Fund (§
10.1-1402.2) and shall be treated as are other moneys in that fund except that
they shall only be used for the purposes of this article, and for funding
purposes authorized by this article to abate pollution caused by barging of
waste, to improve water quality, or for other waste-related purposes.
E. The Board shall promulgate regulations requiring owners and operators of ships, barges and other vessels transporting wastes regulated under this article to demonstrate financial responsibility sufficient to comply with the requirements of this article as a condition of operation. Regulations governing the amount of any financial responsibility required shall take into consideration: (i) the risk of potential damage or injury to state waters and the impairment of beneficial uses that may result from spillage or leakage from the ship, barge or vessel; (ii) the potential costs of containment and cleanup; and (iii) the nature and degree of injury or interference with general health, welfare and property that may result.
F. The owner or operator of a ship, barge or other vessel from which there is spillage or loss to state waters of wastes subject to regulations under this article shall immediately report such spillage or loss in accordance with the regulations of the Board and shall immediately take all such actions as may be necessary to contain and remove such wastes from state waters.
G. No person shall transport wastes regulated under this
article on the navigable waters of the Commonwealth by ship, barge or other
vessel unless such ship, barge or vessel and the containers carried thereon are
designed, constructed, loaded, operated and maintained so as to prevent the escape
of liquids, waste and odors and to prevent the loss or spillage of waste in the
event of an accident. A violation of this subsection shall
be is
a Class 1 misdemeanor. For the purposes of this subsection, the term
"odors" means any emissions that cause an odor objectionable to
individuals of ordinary sensibility.
H. The Director may grant variances for the commercial
transport, loading, and off-loading of solid waste on waters of the
Commonwealth from the requirements of this section provided: that (i) travel on state
waters is minimized; (ii) the solid waste is easily identifiable, is not
hazardous, and is containerized so as to prevent the escape of liquids, waste,
and odors; (iii) the containers are secured to the vessel to prevent spillage;
(iv) the amount of solid waste transported does not exceed 300 tons annually;
and (v) the activity will not occur when weather conditions pose a risk of the
vessel losing its load.
§10.1-1504. Department to enforce Compact; civil penalty.
The Virginia Waste Management Board Department is authorized to
enforce the provisions of this chapter. Any person not an official of another
party state to the Compact who violates any provision of this chapter shall be
subject to a civil penalty of not more than $25,000 per day for each violation.
§10.1-2117. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Biological nutrient removal technology" means technology that will typically achieve at least an 8 mg/L total nitrogen concentration or at least a 1 mg/L total phosphorus concentration in effluent discharges.
"Chesapeake Bay Agreement" means the Chesapeake Bay Agreement of 2000 and any amendments thereto.
"Eligible nonsignificant discharger" means any publicly owned treatment works that is not a significant discharger but due to expansion or new construction is subject to a technology-based standard under § 62.1-44.19:15 or 62.1-44.19:16.
"Fund" means the Virginia Water Quality Improvement Fund established by Article 4 (§10.1-2128 et seq.).
"Individual" means any corporation, foundation, association, or partnership or one or more natural persons.
"Institutions of higher education" means any educational institution meeting the requirements of §60.2-220.
"Local government" means any county, city, town, municipal corporation, authority, district, commission, or political subdivision of the Commonwealth.
"Nonpoint source pollution" means pollution of state waters washed from the land surface in a diffuse manner and not resulting from a discernible, defined, or discrete conveyance.
"Nutrient removal technology" means state-of-the-art nutrient removal technology, biological nutrient removal technology, or other nutrient removal technology.
"Point source pollution" means pollution of state waters resulting from any discernible, defined, or discrete conveyances.
"Publicly owned treatment works" means a publicly
owned sewage collection system consisting of pipelines or conduits, pumping
stations and force mains, and all other construction, devices, and appliances
appurtenant thereto, or any equipment, plant, treatment works, structure,
machinery, apparatus, interest in land, or any combination of these, not
including an onsite sewage system, that is used, operated, acquired, or
constructed for the storage, collection, treatment, neutralization,
stabilization, reduction, recycling, reclamation, separation, or disposal of
wastewater, or for the final disposal of residues resulting from the treatment
of sewage, including but not limited to:
treatment or disposal plants; outfall sewers, interceptor sewers, and collector
sewers; pumping and ventilating stations, facilities, and works; and other real
or personal property and appurtenances incident to their development, use, or
operation.
"Reasonable sewer costs" means the amount expended
per household for sewer service in relation to the median household income of
the service area as determined by guidelines developed and approved by the State Water Control Board of Environmental Resources for
use with the Virginia Water Facilities Revolving Fund established pursuant to
Chapter 22 (§62.1-224 et seq.) of Title 62.1.
"Significant discharger" means (i) a publicly owned
treatment works discharging to the Chesapeake Bay watershed with a design
capacity of 0.5 million gallons per day or greater, (ii) a publicly owned
treatment works discharging to the Chesapeake Bay watershed east of the fall
line with a design capacity of 0.1 million gallons per day or greater, (iii) a
planned or newly expanding publicly owned treatment works discharging to the
Chesapeake Bay watershed, which that is expected to be in
operation by 2010 with a permitted design of 0.5 million gallons per day or
greater, or (iv) a planned or newly expanding publicly owned treatment works
discharging to the Chesapeake Bay watershed east of the fall line with a design
capacity of 0.1 million gallons per day or greater,
which that
is expected to be in operation by 2010.
"State-of-the-art nutrient removal technology" means technology that will achieve at least a 3 mg/L total nitrogen concentration or at least a 0.3 mg/L total phosphorus concentration in effluent discharges.
"State waters" means all waters on the surface or under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdictions.
"Water Quality Improvement Grants" means grants available from the Fund for projects of local governments, institutions of higher education, and individuals (i) to achieve nutrient reduction goals in regulations, permits, or the Chesapeake Bay TMDL Watershed Implementation Plan or (ii) to achieve other water quality restoration, protection or enhancement benefits.
§10.1-2123. Definitions.
As used in this article, unless the context requires a different meaning:
"Board" means the State Water
Control Board of Environmental Resources.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
§10.1-2129. Agency coordination; conditions of grants.
A. If, in any fiscal year beginning on or after July 1, 2005, there are appropriations to the Fund in addition to those made pursuant to subsection A of §10.1-2128, the Secretary of Natural and Historic Resources shall distribute those moneys in the Fund provided from the 10 percent of the annual general fund revenue collections that are in excess of the official estimates in the general appropriation act, and the 10 percent of any unrestricted and uncommitted general fund balance at the close of each fiscal year whose reappropriation is not required in the general appropriation act, as follows:
1. Seventy percent of the moneys shall be distributed to the Department of Conservation and Recreation and shall be administered by it for the sole purpose of implementing projects or best management practices that reduce nitrogen and phosphorus nonpoint source pollution, with a priority given to agricultural best management practices. In no single year shall more than 60 percent of the moneys be used for projects or practices exclusively within the Chesapeake Bay watershed; and
2. Thirty percent of the moneys shall be distributed to the Department of Environmental Quality, which shall use such moneys for making grants for the sole purpose of designing and installing nutrient removal technologies for publicly owned treatment works designated as significant dischargers or eligible nonsignificant dischargers. The moneys shall also be available for grants when the design and installation of nutrient removal technology utilizes the Public-Private Education Facilities and Infrastructure Act (§56-575.1 et seq.).
3. Except as otherwise provided in the Appropriation Act, in
any fiscal year when moneys are not appropriated to the Fund in addition to
those specified in subsection A of §10.1-2128, or when moneys appropriated to
the Fund in addition to those specified in subsection A of §10.1-2128 are less
than 40 percent of those specified in subsection A of §10.1-2128, the
Secretary of Natural and Historic Resources, in consultation with the Secretary
of Agriculture and Forestry, the State Forester, the Commissioner of
Agriculture and Consumer Services, and the Directors of the Departments of
Environmental Quality and Conservation and Recreation, and with the advice and
guidance of the Board of Conservation and Recreation, the Virginia Soil and
Water Conservation Board, and the State Water Control
Board of Environmental Resources,
and following a public comment period of at least 30 days and a public hearing,
shall allocate those moneys deposited in the Fund, but excluding any moneys
deposited into the Virginia Natural Resources Commitment Fund established
pursuant to §10.1-2128.1, between point and nonpoint sources, both of which
shall receive moneys in each such year.
B. 1. Except as may otherwise be specified in the general
appropriation act, the Secretary of Natural and Historic Resources, in
consultation with the Secretary of Agriculture and Forestry, the State
Forester, the Commissioner of Agriculture and Consumer Services, the State
Health Commissioner, and the Directors of the Departments of Environmental
Quality and Conservation and Recreation, and with the advice and guidance of
the Board of Conservation and Recreation, the Virginia Soil and Water
Conservation Board, and the State Water Control
Board of Environmental Resources,
shall develop written guidelines that (i) specify eligibility requirements;
(ii) govern the application for and the distribution and conditions of Water
Quality Improvement Grants; (iii) list criteria for prioritizing funding
requests; and (iv) define criteria and financial incentives for water reuse.
2. In developing the guidelines, the Secretary shall evaluate and consider, in addition to such other factors as may be appropriate to most effectively restore, protect and improve the quality of state waters: (i) specific practices and programs proposed in the Chesapeake Bay TMDL Watershed Implementation Plan, and the associated effectiveness and cost per pound of nutrients removed; (ii) water quality impairment or degradation caused by different types of nutrients released in different locations from different sources; and (iii) environmental benchmarks and indicators for achieving improved water quality. The process for development of guidelines pursuant to this subsection shall, at a minimum, include (a) use of an advisory committee composed of interested parties; (b) a 60-day public comment period on draft guidelines; (c) written responses to all comments received; and (d) notice of the availability of draft guidelines and final guidelines to all who request such notice.
3. In addition to those the Secretary deems advisable to most effectively restore, protect and improve the quality of state waters, the criteria for prioritizing funding requests shall include: (i) the pounds of total nitrogen and the pounds of total phosphorus reduced by the project; (ii) whether the location of the water quality restoration, protection or improvement project or program is within a watershed or subwatershed with documented water nutrient loading problems or adopted nutrient reduction goals; (iii) documented water quality impairment; and (iv) the availability of other funding mechanisms. Notwithstanding the provisions of subsection E of § 10.1-2131, the Director of the Department of Environmental Quality may approve a local government point source grant application request for any single project that exceeds the authorized grant amount outlined in subsection E of § 10.1-2131. Whenever a local government applies for a grant that exceeds the authorized grant amount outlined in this chapter or when there is no stated limitation on the amount of the grant for which an application is made, the Directors and the Secretary shall consider the comparative revenue capacity, revenue efforts and fiscal stress as reported by the Commission on Local Government. The development or implementation of cooperative programs developed pursuant to subsection B of §10.1-2127 shall be given a high priority in the distribution of Virginia Water Quality Improvement Grants from the moneys allocated to nonpoint source pollution.
§10.1-2131. Point source pollution funding; conditions for approval.
A. The Department of Environmental Quality (the Department) shall be the lead state agency for determining the appropriateness of any grant related to point source pollution to be made from the Fund to restore, protect, or improve state water quality.
B. The Director of the Department (the Director) shall, subject to available funds and in coordination with the Director of the Department of Conservation and Recreation, direct the State Treasurer to make Water Quality Improvement Grants in accordance with the guidelines established pursuant to §10.1-2129. The Director shall enter into grant agreements with all facilities designated as significant dischargers or eligible nonsignificant dischargers that apply for grants; however, all such grant agreements shall contain provisions that payments thereunder are subject to the availability of funds.
C. Notwithstanding the priority provisions of §10.1-2129, the Director shall not authorize the distribution of grants from the Fund for purposes other than financing the cost of design and installation of nutrient removal technology at publicly owned treatment works in the Chesapeake Bay watershed until such time as nutrient reductions of regulations, permits, or the Chesapeake Bay TMDL Watershed Implementation Plan are satisfied, unless he finds that there exists in the Fund sufficient funds for substantial and continuing progress in implementation of the reductions established in accordance with regulations, permits, or the Chesapeake Bay TMDL Watershed Implementation Plan within the Chesapeake Bay watershed.
In addition to the provisions of §10.1-2130, all grant agreements related to nutrients shall include: (i) numerical technology-based effluent concentration limitations on nutrient discharges to state waters based upon the technology installed by the facility; (ii) enforceable provisions related to the maintenance of the numerical concentrations that will allow for exceedances of 0.8 mg/L for total nitrogen or no more than 10 percent, whichever is greater, for exceedances of 0.1 mg/L for total phosphorus or no more than 10%, and for exceedances caused by extraordinary conditions; and (iii) recognition of the authority of the Commonwealth to make the Virginia Water Facilities Revolving Fund (§62.1-224 et seq.) available to local governments to fund their share of the cost of designing and installing nutrient removal technology based on financial need and subject to availability of revolving loan funds, priority ranking, and revolving loan distribution criteria.
If, pursuant to §10.1-1187.6, the State Water
Control Board of Environmental Resources
approves an alternative compliance method to technology-based concentration
limitations in Virginia Pollutant Discharge Elimination System permits, the
concentration limitations of the grant agreement shall be suspended subject to
the terms of such approval. The cost of the design and installation of nutrient
removal technology at publicly owned treatment works meeting the nutrient
reductions of regulations, permits, or the Chesapeake Bay TMDL Watershed
Implementation Plan and incurred prior to the execution of a grant agreement is
eligible for reimbursement from the Fund if the grant is made pursuant to an
executed agreement consistent with the provisions of this chapter.
Subsequent to the implementation of any applicable
regulations, permits, or the Chesapeake Bay TMDL Watershed Implementation Plan,
the Director may authorize disbursements from the Fund for any water quality
restoration, protection, and improvements related to point source pollution
that are clearly demonstrated as likely to achieve measurable and specific
water quality improvements, including cost effective technologies to reduce
loads of total phosphorus, total nitrogen, or nitrogen-containing ammonia in
order to meet the requirements of regulations associated with the reduction of
ammonia that have not yet been adopted and that are more stringent than
regulations adopted by the State Water Control
Board of Environmental Resources as
of January 1, 2018. Notwithstanding any provision of this subsection, the
Director may, at any time, authorize grants, including grants to institutions
of higher education, for technical assistance related to nutrient reduction.
Notwithstanding any other provision of this chapter, the Director may at any time authorize grants for the design and installation of wastewater conveyance infrastructure that (a) diverts wastewater from one publicly owned treatment works that is eligible for grant funding under this chapter to another publicly owned treatment works that also is eligible for such funding; (b) diverts wastewater to a receiving treatment works that is capable of achieving compliance with its nutrient reduction or ammonia control discharge requirements and results in a net reduction in total phosphorus, total nitrogen, or nitrogen-containing ammonia discharges; and (c) results in a Water Quality Improvement Grant expense being incurred by the Department that is the same as or lower than the grant expense the Department would incur in funding design and installation of eligible nutrient removal or other applicable treatment technology at such treatment works that would have treated the wastewater in the absence of the diversion project.
D. The grant percentage provided for financing the costs of the design and installation of nutrient removal technology at publicly owned treatment works shall be based upon the financial need of the community as determined by comparing the annual sewer charges expended within the service area to the reasonable sewer cost established for the community.
E. Grants shall be awarded in the following manner:
1. In communities for which the ratio of annual sewer charges to reasonable sewer cost is less than 0.30, the Director shall authorize grants in the amount of 35 percent of the costs of the design and installation of nutrient removal technology;
2. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.30 and less than 0.50, the Director shall authorize grants in the amount of 45 percent of the costs of the design and installation of nutrient removal technology;
3. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.50 and less than 0.80, the Director shall authorize grants in the amount of 60 percent of the costs of design and installation of nutrient removal technology; and
4. In communities for which the ratio of annual sewer charges to reasonable sewer cost is equal to or greater than 0.80, the Director shall authorize grants in the amount of 75 percent of the costs of the design and installation of nutrient removal technology.
§10.1-2500. Virginia Environmental Emergency Response Fund.
A. There is hereby established the Virginia Environmental Emergency Response Fund, hereafter referred to as the Fund, to be used (i) for the purpose of emergency response to environmental pollution incidents and for the development and implementation of corrective actions for pollution incidents, other than pollution incidents addressed through the Virginia Underground Petroleum Storage Tank Fund, as described in §62.1-44.34:11 of the State Water Control Law; (ii) to conduct assessments of potential sources of toxic contamination in accordance with the policy developed pursuant to § 62.1-44.19:10; and (iii) to assist small businesses for the purposes described in §10.1-1197.3.
B. The Fund shall be a nonlapsing revolving fund consisting of grants, general funds, and other such moneys as appropriated by the General Assembly, and moneys received by the State Treasurer for:
1. Noncompliance penalties assessed pursuant to §10.1-1311, civil penalties assessed pursuant to subsection B of §10.1-1316, and civil charges assessed pursuant to subsection C of §10.1-1316.
2. Civil penalties assessed pursuant to subsection C of §10.1-1418.1, civil penalties assessed pursuant to subsections A and E of §10.1-1455, and civil charges assessed pursuant to subsection F of §10.1-1455.
3. (For contingent expiration date, see Acts 2016, cc. 68 and
758, as amended by Acts 2017, c. 345) Civil charges assessed pursuant to
subdivision (8d) of §62.1-44.15 and civil
penalties assessed pursuant to subsection (a) of §62.1-44.32, excluding
assessments made for violations of Article 9 (§62.1-44.34:8 et seq.) or 10 (§
62.1-44.34:10 et seq.), Chapter 3.1 of Title
62.1, of
the State Water Control Law or a regulation, administrative
or judicial order, or term or condition of approval relating to or issued under
those articles.
3. (For contingent effective date, see Acts 2016, cc. 68 and
758, as amended by Acts 2017, c. 345) Civil charges assessed pursuant to
subdivision (8d) of §62.1-44.15 and civil penalties assessed pursuant to
subsection (a) of §62.1-44.32, excluding assessments made for violations of
Article 2.3 (§62.1-44.15:24 et seq.), 2.4 (§62.1-44.15:51 et seq.), 2.5 (§
62.1-44.15:67 et seq.), 9 (§62.1-44.34:8 et seq.), or 10 (§62.1-44.34:10 et
seq.) of Chapter 3.1 of Title 62.1, the State Water Control Law or
a regulation, administrative or judicial order, or term or condition of
approval relating to or issued under those articles.
4. Civil penalties and civil charges assessed pursuant to § 62.1-270.
5. Civil penalties assessed pursuant to subsection A of § 62.1-252 and civil charges assessed pursuant to subsection B of §62.1-252.
6. Civil penalties assessed in conjunction with special orders
by the Director pursuant to §10.1-1186 and by the Waste
Management Board of Environmental Resources
pursuant to subsection G of §10.1-1455.
§15.2-924. Water supply emergency ordinances.
A. Whenever the governing body of any locality finds that a water supply emergency exists or is reasonably likely to occur if water conservation measures are not taken, it may adopt an ordinance restricting the use of water by the citizens of such locality for the duration of such emergency or for a period of time necessary to prevent the occurrence of a water supply emergency. However, such ordinance shall apply only to water supplied by a locality, authority, or company distributing water for a fee or charge. Such ordinance may include appropriate penalties designed to prevent excessive use of water, including, but not limited to, a surcharge on excessive amounts used.
B. After such an emergency has been declared in any locality,
any owner of a water supply system serving that locality may apply to the State Water Control Board Department of Environmental Quality
for assistance. If the State Water Control Board Department of Environmental Quality
confirms the existence of an emergency, and finds that such owner and such
locality have exhausted available means to relieve the emergency and that the
owner and locality are applying all feasible water conservation measures, and
in addition finds that there is water available in neighboring localities in
excess of the reasonable needs of such localities, and that there exists
between such neighboring localities interconnections for the transmission of
water, the Board Department
of Environmental Quality shall so inform the Governor. The
Governor, if requested jointly by the locality and the owner of the systems
supplying the locality, may then appoint a committee consisting of one
representative of the locality declaring the emergency, one representative of
the system supplying the locality under emergency, and those two representatives
shall choose a third representative and failing to choose such third
representative within seven days he shall be selected by the Governor. The
committee shall have the duty and authority to allocate the water available in
such localities for the period of the emergency, provided that the period of
the emergency shall not exceed that determined by the locality declaring the
emergency or the State Water Control Board Department of Environmental Quality,
whichever period termination is earlier, so that the best water supply possible
will be provided to all water users during the emergency as previously
described. Nothing in this section shall be construed as requiring the
construction of pipeline interconnections between any locality or any water
supply system.
C. Any water taken from one water supplier for the benefit of another shall be paid for by using the established rate schedule of the supplier for treated water. Raw water shall be furnished at rates which shall reflect all costs to the supplying locality, including, but not limited to, capital investment costs. Should there be imposed upon the supplier any additional obligation, water production costs or other capital or operating expenditures beyond those normal to the suppliers' system, then the cost of same shall be chargeable to the receiving locality by single payment or by incorporation in a special rate structure, all of the same as shall be reasonable.
D. Nothing contained in this section shall authorize any locality to regulate the use of water taken from a river or any flowing stream when such water is used for industrial purposes and the approximate same quantity of water is returned to such river or stream after such industrial usage.
§15.2-2111. Regulation of sewage disposal or water service.
Any locality may exercise its powers to regulate sewage collection, treatment or disposal service and water service notwithstanding any anticompetitive effect. Such regulation may include the establishment of an exclusive service area for any sewage or water system, including a system owned or operated by the locality, the fixing of rates or charges for any sewage or water service, and the prohibition, restriction or regulation of competition between entities providing sewage or water service.
No power herein granted shall alter or amend the powers or the
duties of any present or future authority created pursuant to the Virginia
Water and Waste Authorities Act (§15.2-5100 et seq.) nor confer any right or
responsibility upon the governing body of any locality which would supersede or
be inconsistent with any of the duties or responsibilities of the State Water Control Board of Environmental Resources or the
Department of Environmental Quality.
§21-122.1. Bonds for special purpose; no election required.
The governing body of any county in which a sanitary district
has been or may be created by general or special law shall have the power to
issue bonds to satisfy improvements to water or sewerage systems mandated by
the State Water Control Board of Environmental Resources or the
Department of Environmental Quality, pursuant to the
Federal Water Pollution Control Clean Water Act, as amended (P.L. 92-500) (33 U.S.C. §1251 et seq.).
The principal and interest on bonds issued under this section shall be paid by the governing body exclusively from revenues and receipts from the water or sewerage system which is to be improved.
For the purposes of this section, the term
"mandated" shall also mean any agreement between a governing body and
the State Water Control Department of Environmental Quality or the
Board of Environmental Resources to
come into compliance with the requirements of the State Water Control Law (§62.1-44.2 et seq.).
Issuance of such bonds shall be subject to the conditions or limitations of this article; however, no bond referendum shall be required for bonds to be issued pursuant to this section. The sections of this article pertaining to election requirements and procedures shall not be applicable where bonds are to be issued for the purposes set forth herein. In addition, the provisions of §§21-137.2 and 21-138, authorizing an annual tax to be levied upon all the property in the district in order to pay the principal and interest due on the bonds, shall not be applicable to bonds issued under this section.
All bonds issued under the provisions of this section shall contain a statement on their face substantially to the effect that neither the faith and credit of the Commonwealth nor the faith and credit of any county, city, town, or other subdivision of the Commonwealth are pledged to the payment of the principal of or the interest on such bonds. The issuance of revenue bonds under the provisions of this section shall not directly or indirectly or contingently obligate the Commonwealth or any county, city, town or other subdivision of the Commonwealth to levy any taxes whatever therefor or to make any appropriation for their payment except from the funds pledged under the provisions of this section.
§28.2-638. Authority of Governor to authorize dredging of channel in navigable waters.
When the approval, consent, or authorization of the
Commonwealth is necessary or expedient for any person to dredge a channel of
any navigable stream, the bed of which is owned by the Commonwealth, for the
purpose of deepening, widening, or relocating such channel and making related
improvements, the Governor may, on behalf of the Commonwealth, grant such
approval upon such terms and conditions as he deems appropriate after the
receipt of advisory reports from the Virginia Institute of Marine Science, the State Water Control Board Department of Environmental Quality,
the Commission, the Board of Wildlife Resources, the Director of the Department
of Conservation and Recreation, the Director of the Department of Historic
Resources, the State Port Authority, and the Commonwealth Transportation Board.
§28.2-1100. Virginia Institute of Marine Science; duties.
The Virginia Institute of Marine Science shall
hereafter be referred to as (the
Institute. The Institute) shall:
1. Conduct studies and investigations of the seafood and commercial fishing and sport fishing industries;
2. Consider ways to conserve, develop, and replenish fisheries resources and advise the Marine Resources Commission and other agencies and private groups on these matters;
3. Conduct studies of problems pertaining to the other segments of the maritime economy;
4. Conduct studies of marine pollution in cooperation with the State Water Control Board Department of Environmental Quality
and the Department of Health and make the data and their recommendations
available to the appropriate agencies;
5. Conduct hydrographic and biological studies of the Chesapeake Bay, its tributaries, and all the tidal waters of the Commonwealth and the contiguous waters of the Atlantic Ocean;
6. Engage in research in the marine sciences;
7. Conduct such special studies and investigations concerning these subjects as requested by the Governor;
8. Engage in research and provide training, technical assistance, and advice to the Board of Conservation and Recreation on erosion along tidal shorelines, the Soil and Water Conservation Board on matters relating to tidal shoreline erosion, and to other agencies upon request; and
9. Develop comprehensive coastal resource management guidance for local governments to foster the sustainability of shoreline resources by December 30, 2012. The guidance shall identify preferred options for shoreline management and taking into consideration the resource condition, priority planning, and forecasting of the condition of the Commonwealth's shoreline with respect to projected sea-level rise.
These studies shall include consideration of the seafood and other marine resources, such as the waters, bottoms, shorelines, tidal wetlands, and beaches, and all matters related to marine waters and the means by which marine resources might be conserved, developed, and replenished.
§28.2-1205. Permits for the use of state-owned bottomlands.
A. When determining whether to grant or deny any permit for the use of state-owned bottomlands, the Commission shall be guided in its deliberations by the provisions of Article XI, Section I of the Constitution of Virginia. In addition to other factors, the Commission shall also consider the public and private benefits of the proposed project and shall exercise its authority under this section consistent with the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to §1-200 in order to protect and safeguard the public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in trust by it for the benefit of the people as conferred by the public trust doctrine and the Constitution of Virginia. The Commission shall also consider the project's effect on the following:
1. Other reasonable and permissible uses of state waters and state-owned bottomlands;
2. Marine and fisheries resources of the Commonwealth;
3. Tidal wetlands, except when this has or will be determined
under the provisions of Chapter 13 of this title (§28.2-1300 et seq.);
4. Adjacent or nearby properties;
5. Water quality; and
6. Submerged aquatic vegetation (SAV).
B. The Commission shall consult with other state agencies,
including the Virginia Institute of Marine Science, the State Water
Control Board Department of
Environmental Quality, the Virginia Department of
Transportation, and the State Corporation Commission, whenever the Commission's
decision on a permit application relates to or affects the particular concerns
or activities of those agencies.
C. No permit for a marina or boatyard for commercial use shall be granted until the owner or other applicant presents to the Commission a plan for sewage treatment or disposal facilities that has been approved by the State Department of Health.
D. A permit is required and shall be issued by the Commission
for placement of any private pier measuring 100 or more feet in length from the
mean low-water mark, which is used for noncommercial purposes by an owner of
the riparian land in the waters opposite the land, and that traverses
commercially productive leased oyster or clam grounds, as defined in §
28.2-630, provided that the pier does not extend beyond the navigation line
established by the Commission or the United States U.S. Army Corps of Engineers.
The permit may reasonably prescribe the design and location of the pier for the
sole purpose of minimizing the adverse impact on such oyster or clam grounds or
the harvesting or propagation of oysters or clams therefrom. The permit shall
contain no other conditions or requirements. Unless information or
circumstances materially alter the conditions under which the permit would be
issued, the Commission shall act within 90 days of receipt of a complete joint
permit application to approve or deny the application. If the Commission fails
to act within that time, the application shall be deemed approved and the
applicant shall be notified of the deemed approval.
E. All permits issued by the Commission for the use of state-owned bottomlands pursuant to §28.2-1204, or to recover underwater historic property shall be in writing and specify the conditions and terms that the Commission determines are appropriate, and royalties unless prohibited under other provisions of this chapter.
F. Any person aggrieved by a decision of the Commission under this section is entitled to judicial review in accordance with the provisions of the Administrative Process Act (§2.2-4000 et seq.). However, any decision made by the Commission hereunder consistent with the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to §1-200 shall not be deemed to have been made pursuant to the police power. No person shall reapply for the same or substantially similar use of the bottomlands within 12 months of the denial of a permit by the Commission. Nothing in this subsection shall be construed to deprive a riparian landowner of such rights as he may have under common law.
§28.2-1302. Adoption of wetlands zoning ordinance; terms of ordinance.
Any county, city, or town may adopt the following ordinance, which, after January 1, 2024, shall serve as the only wetlands zoning ordinance under which any wetlands board is authorized to operate. Any county, city, or town that has adopted the ordinance prior to January 1, 2024, shall amend the ordinance to conform it to the ordinance contained herein by January 1, 2024.
Wetlands Zoning Ordinance
§1. The governing body of ________, acting pursuant to Chapter 13 (§28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands.
§2. As used in this ordinance, unless the context requires a different meaning:
"Back Bay and its tributaries" means the following, as shown on the United States Geological Survey Quadrangle Sheets for Virginia Beach, North Bay, and Knotts Island: Back Bay north of the Virginia-North Carolina state line; Capsies Creek north of the Virginia-North Carolina state line; Deal Creek; Devil Creek; Nawney Creek; Redhead Bay, Sand Bay, Shipps Bay, North Bay, and the waters connecting them; Beggars Bridge Creek; Muddy Creek; Ashville Bridge Creek; Hells Point Creek; Black Gut; and all coves, ponds, and natural waterways adjacent to or connecting with the above-named bodies of water.
"Commission" means the Virginia Marine Resources Commission.
"Commissioner" means the Commissioner of Marine Resources.
"Governmental activity" means any of the services provided by this ________ (county, city, or town) to its citizens for the purpose of maintaining this ________ (county, city, or town), including but not limited to such services as constructing, repairing, and maintaining roads; providing sewage facilities and street lights; supplying and treating water; and constructing public buildings.
"Nonvegetated wetlands" means unvegetated lands lying contiguous to mean low water and between mean low water and mean high water, including those unvegetated areas of Back Bay and its tributaries and the North Landing River and its tributaries subject to flooding by normal and wind tides but not hurricane or tropical storm tides.
"North Landing River and its tributaries" means the following, as shown on the United States Geological Survey Quadrangle Sheets for Pleasant Ridge, Creeds, and Fentress: the North Landing River from the Virginia-North Carolina line to Virginia Highway 165 at North Landing Bridge; the Chesapeake and Albemarle Canal from Virginia Highway 165 at North Landing Bridge to the locks at Great Bridge; and all named and unnamed streams, creeks, and rivers flowing into the North Landing River and the Chesapeake and Albemarle Canal except West Neck Creek north of Indian River Road, Pocaty River west of Blackwater Road, Blackwater River west of its forks located at a point approximately 6400 feet due west of the point where Blackwater Road crosses the Blackwater River at the village of Blackwater, and Millbank Creek west of Blackwater Road.
"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.
"Vegetated wetlands" means lands lying between and contiguous to mean low water and an elevation above mean low water equal to the factor one and one-half times the mean tide range at the site of the proposed project in the county, city, or town in question, and upon which is growing any of the following species: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina patens), saltgrass (Distichlis spicata), black needlerush (Juncus roemerianus), saltwort (Salicornia spp.), sea lavender (Limonium spp.), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), sea oxeye (Borrichia frutescens), arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), sea rocket (Cakile edentula), southern wildrice (Zizaniopsis miliacea), cattail (Typha spp.), three-square (Scirpus spp.), buttonbush (Cephalanthus occidentalis), bald cypress (Taxodium distichum), black gum (Nyssa sylvatica), tupelo (Nyssa aquatica), dock (Rumex spp.), yellow pond lily (Nuphar sp.), marsh fleabane (Pluchea purpurascens), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), smartweed (Polygonum sp.), arrowhead (Sagittaria spp.), sweet flag (Acorus calamus), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), or switch grass (Panicum virgatum).
"Vegetated wetlands of Back Bay and its tributaries" or "vegetated wetlands of the North Landing River and its tributaries" means all marshes subject to flooding by normal and wind tides but not hurricane or tropical storm tides, and upon which is growing any of the following species: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina patens), black needlerush (Juncus roemerianus), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattail (Typha spp.), three-square (Scirpus spp.), dock (Rumex sp.), smartweed (Polygonum sp.), yellow pond lily (Nuphar sp.), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead (Sagittaria sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), or switch grass (Panicum virgatum).
"Wetlands" means both vegetated and nonvegetated wetlands.
"Wetlands board" or "board" means a board created pursuant to §28.2-1303 of the Code of Virginia.
§3. The following uses of and activities in wetlands are authorized if otherwise permitted by law:
1. The construction and maintenance of noncommercial catwalks, piers, boathouses, boat shelters, fences, duckblinds, wildlife management shelters, footbridges, observation decks, and shelters and other similar structures, provided that such structures are so constructed on pilings as to permit the reasonably unobstructed flow of the tide and preserve the natural contour of the wetlands;
2. The cultivation and harvesting of shellfish, and worms for bait;
3. Noncommercial outdoor recreational activities, including hiking, boating, trapping, hunting, fishing, shellfishing, horseback riding, swimming, skeet and trap shooting, and shooting on shooting preserves, provided that no structure shall be constructed except as permitted in subdivision 1 of this section;
4. Other outdoor recreational activities, provided they do not impair the natural functions or alter the natural contour of the wetlands;
5. Grazing, haying, and cultivating and harvesting agricultural, forestry, or horticultural products;
6. Conservation, repletion, and research activities of the Commission, the Virginia Institute of Marine Science, the Department of Wildlife Resources and other conservation-related agencies;
7. The construction or maintenance of aids to navigation that are authorized by governmental authority;
8. Emergency measures decreed by any duly appointed health officer of a governmental subdivision acting to protect the public health;
9. The normal maintenance and repair of, or addition to, presently existing roads, highways, railroad beds, or facilities abutting on or crossing wetlands, provided that no waterway is altered and no additional wetlands are covered;
10. Governmental activity in wetlands owned or leased by the Commonwealth or a political subdivision thereof;
11. The normal maintenance of man-made drainage ditches, provided that no additional wetlands are covered. This subdivision does not authorize the construction of any drainage ditch; and
12. The construction of living shoreline projects authorized pursuant to a general permit developed under subsection B of §28.2-104.1.
§4. A. Any person who desires to use or develop any wetland within this ________ (county, city, or town), other than for the purpose of conducting the activities specified in §3 of this ordinance, shall first file an application for a permit directly with the wetlands board or with the Commission.
B. The permit application shall include the following: the name and address of the applicant; a detailed description of the proposed activities; a map, drawn to an appropriate and uniform scale, showing the area of wetlands directly affected, the location of the proposed work thereon, the area of existing and proposed fill and excavation, the location, width, depth, and length of any proposed channel and disposal area, and the location of all existing and proposed structures, sewage collection and treatment facilities, utility installations, roadways, and other related appurtenances or facilities, including those on adjacent uplands; a statement indicating whether use of a living shoreline as defined in §28.2-104.1 for a shoreline management practice is not suitable, including reasons for the determination; a description of the type of equipment to be used and the means of equipment access to the activity site; the names and addresses of owners of record of adjacent land and known claimants of water rights in or adjacent to the wetland of whom the applicant has notice; an estimate of cost; the primary purpose of the project; any secondary purposes of the project, including further projects; the public benefit to be derived from the proposed project; a complete description of measures to be taken during and after the alteration to reduce detrimental offsite effects; the completion date of the proposed work, project, or structure; and such additional materials and documentation as the wetlands board may require.
C. A nonrefundable processing fee shall accompany each permit application. The fee shall be set by the applicable governing body with due regard for the services to be rendered, including the time, skill, and administrator's expense involved.
§5. All applications, maps, and documents submitted shall be open for public inspection at the office designated by the applicable governing body and specified in the public notice for public hearing required under §6 of this ordinance.
§6. Not later than 60 days after receipt of a complete
application, the wetlands board shall hold a public hearing on the application.
The applicant, local governing body, Commissioner, owner of record of any land
adjacent to the wetlands in question, known claimants of water rights in or
adjacent to the wetlands in question, the Virginia Institute of Marine Science,
the Department of Wildlife Resources, the State Water
Control Board Department
of Environmental Quality, the Department of Transportation,
and any governmental agency expressing an interest in the application shall be
notified of the hearing. The Commission or board shall mail or email these
notices not less than 20 days prior to the date set for the hearing. The board
shall also (i) cause notice of the hearing to be published at least once in the
seven days prior to such hearing in a newspaper of general circulation in this
_________ (county, city, or town); (ii) post a notice of the hearing on its
website at least 14 days prior to such hearing; and (iii) provide a copy of
such notice to the Commission for submittal to the Virginia Regulatory Town
Hall. The published notice shall specify the place or places within this
________ (county, city, or town) where copies of the application may be examined.
The costs of publication shall be paid by the applicant. In the event that the
board submits a correct and timely notice for publication and the newspaper
fails to publish the notice or publishes the notice incorrectly, the board
shall be deemed to have met the notice requirements of this subsection so long
as the notice is published in the next available edition of such newspaper.
§7. A. Approval of a permit application shall require the affirmative vote of three members of a five-member board or four members of a seven-member board.
B. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. Any person may testify at the public hearing. Each witness at the hearing may submit a concise written statement of his testimony. The board shall make a record of the proceeding, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the board, and the rationale for the decision.
C. The board shall make its determination within 30 days of the hearing. If the board fails to act within that time, the application shall be deemed approved. Within 48 hours of its determination, the board shall notify the applicant and the Commissioner of its determination. If the board fails to make a determination within the 30-day period, it shall promptly notify the applicant and the Commission that the application is deemed approved. For purposes of this section, "act" means taking a vote on the application. If the application receives less than four affirmative votes from a seven-member board or less than three affirmative votes from a five-member board, the permit shall be denied.
D. If the board's decision is reviewed or appealed, the board shall transmit the record of its hearing to the Commissioner. Upon a final determination by the Commission, the record shall be returned to the board. The record shall be open for public inspection at the same office as was designated under §5 of this ordinance.
§8. The board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it, securing to the Commonwealth compliance with the conditions and limitations set forth in the permit. The board may, after a hearing held pursuant to this ordinance, suspend or revoke a permit if the applicant has failed to comply with any of the conditions or limitations set forth in the permit or has exceeded the scope of the work described in the application. The board may, after a hearing, suspend a permit if the applicant fails to comply with the terms and conditions set forth in the application.
§9. In fulfilling its responsibilities under this ordinance, the board shall preserve and prevent the despoliation and destruction of wetlands within its jurisdiction while accommodating necessary economic development in a manner consistent with wetlands preservation and any standards set by the Commonwealth in addition to those identified in §28.2-1308 to ensure protection of shorelines and sensitive coastal habitats from sea level rise and coastal hazards, including the provisions of guidelines and minimum standards promulgated by the Commission pursuant to §28.2-1301 of the Code of Virginia.
§10. A. In deciding whether to grant, grant in modified form, or deny a permit, the board shall consider the following:
1. The testimony of any person in support of or in opposition to the permit application;
2. The impact of the proposed development on the public health, safety, and welfare; and
3. The proposed development's conformance with standards prescribed in §28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1301 of the Code of Virginia.
B. The board shall grant the permit if all of the following criteria are met:
1. The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment.
2. The proposed development conforms with the standards prescribed in §28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1301 of the Code of Virginia.
3. The proposed activity does not violate the purposes and intent of this ordinance or Chapter 13 (§28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.
C. If the board finds that any of the criteria listed in subsection B of this section are not met, the board shall deny the permit application but allow the applicant to resubmit the application in modified form.
§11. The permit shall be in writing and signed by the chairman of the board or his authorized representative. A copy of the permit shall be transmitted to the Commissioner.
§12. No permit shall be granted without an expiration date established by the board. Upon proper application, the board may extend the permit expiration date.
§13. No permit granted by a wetlands board shall in any way affect the applicable zoning and land use ordinances of this ________ (county, city, or town) or the right of any person to seek compensation for any injury in fact incurred by him because of the proposed activity.
§28.2-1403. Certain counties, cities, and towns authorized to adopt coastal primary sand dune ordinance.
Any of the following counties, cities and towns that adopt a wetlands zoning ordinance pursuant to §28.2-1302 may adopt the coastal primary sand dune zoning ordinance that is set out in this section: the Counties of Accomack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York; the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredericksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach and Williamsburg; and the Town of Cape Charles. In the event that a locality has not adopted a wetlands zoning ordinance pursuant to Chapter 13 (§28.2-1300 et seq.) or repeals it if already adopted, such locality may adopt or continue to administer the ordinance contained herein provided the locality appoints a wetlands board following the procedure specified in § 28.2-1303. Any county or city that has adopted the Coastal Primary Sand Dune Zoning Ordinance prior to January 1, 2024, shall amend the ordinance to conform it to the ordinance contained herein by January 1, 2024. The following ordinance is the only coastal primary sand dune zoning ordinance under which any board shall operate after January 1, 2024.
Coastal Primary Sand Dune Zoning Ordinance
§1. The governing body of ________, acting pursuant to Chapter 14 (§28.2-1400 et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of coastal primary sand dunes. Whenever coastal primary sand dunes are referred to in this ordinance, such references shall also include beaches.
§2. As used in this ordinance, unless the context requires a different meaning:
"Beach" means the shoreline zone comprised of unconsolidated sandy material upon which there is a mutual interaction of the forces of erosion, sediment transport, and deposition that extends from the low water line landward to where there is a marked change in either material composition or physiographic form such as a dune, bluff, or marsh, or where no such change can be identified, to the line of woody vegetation (usually the effective limit of stormwaves), or the nearest impermeable man-made structure, such as a bulkhead, revetment, or paved road.
"Coastal primary sand dune" or "dune" means a mound of unconsolidated sandy soil that is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from 10 percent or greater to less than 10 percent, and upon which is growing any of the following species: American beach grass (Ammophila breviligulata); beach heather (Hudsonia tomentosa); dune bean (Strophostyles spp.); dusty miller (Artemisia stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Honckenya peploides); sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); Japanese sedge or Asiatic sand sedge (Carex kobomugi); Virginia pine (Pinus virginiana); broom sedge (Andropogon virginicus); and short dune grass (Panicum amarum). For purposes of this ordinance, "coastal primary sand dune" shall not include any mound of sand, sandy soil, or dredge spoil deposited by any person for the purpose of temporary storage, beach replenishment, or beach nourishment, nor shall the slopes of any such mound be used to determine the landward or lateral limits of a coastal primary sand dune.
"Commission" means the Virginia Marine Resources Commission.
"Commissioner" means the Commissioner of Marine Resources.
"County, city and town" means the governing body of the county, city and town.
"Governmental activity" means any of the services provided by the Commonwealth or a county, city, or town to its citizens for the purpose of maintaining public facilities, including but not limited to, such services as constructing, repairing, and maintaining roads; providing street lights and sewage facilities; supplying and treating water; and constructing public buildings.
"Wetlands board" or "board" means the board created pursuant to §28.2-1303 of the Code of Virginia.
§3. The following uses of and activities in dunes are authorized if otherwise permitted by law:
1. The construction and maintenance of noncommercial walkways that do not alter the contour of the coastal primary sand dune;
2. The construction and maintenance of observation platforms that are not an integral part of any dwelling and that do not alter the contour of the coastal primary sand dune;
3. The planting of beach grasses or other vegetation for the purpose of stabilizing coastal primary sand dunes;
4. The placement of sand fences or other material on or adjacent to coastal primary sand dunes for the purpose of stabilizing such features, except that this provision shall not be interpreted to authorize the placement of any material that presents a public health or safety hazard;
5. Sand replenishment activities of any private or public concern, provided no sand shall be removed from any coastal primary sand dune unless authorized by lawful permit;
6. The normal maintenance of any groin, jetty, riprap, bulkhead, or other structure designed to control beach erosion that may abut a coastal primary sand dune;
7. The normal maintenance or repair of existing roads, highways, railroad beds, and facilities of the United States, this Commonwealth or any of its counties or cities, or of any person, provided no coastal primary sand dunes are altered;
8. Outdoor recreational activities, provided the activities do not alter the natural contour of the coastal primary sand dune or destroy the vegetation growing thereon;
9. The conservation and research activities of the Commission, Virginia Institute of Marine Science, Department of Wildlife Resources, and other conservation-related agencies;
10. The construction and maintenance of aids to navigation that are authorized by governmental authority;
11. Activities pursuant to any emergency declaration by the governing body of any local government or the Governor of the Commonwealth or any public health officer for the purposes of protecting the public health and safety;
12. Governmental activity in coastal primary sand dunes owned or leased by the Commonwealth or a political subdivision thereof; and
13. The construction of living shoreline projects authorized pursuant to a general permit developed under subsection B of §28.2-104.1.
§4. A. Any person who desires to use or alter any coastal primary sand dune within this _______ (county, city, or town), other than for the purpose of conducting the activities specified in §3 of this ordinance, shall first file an application directly with the wetlands board or with the Commission.
B. The permit application shall include the following: the name and address of the applicant; a detailed description of the proposed activities and a map, drawn to an appropriate and uniform scale, showing the area of dunes directly affected, the location of the proposed work thereon, the area of any proposed fill and excavation, the location, width, depth, and length of any disposal area, and the location of all existing and proposed structures, sewage collection and treatment facilities, utility installations, roadways, and other related appurtenances or facilities, including those on adjacent uplands; a description of the type of equipment to be used and the means of equipment access to the activity site; the names and addresses of owners of record of adjacent land; an estimate of cost; the primary purpose of the project; any secondary purposes of the project, including further projects; the public benefit to be derived from the proposed project; a complete description of measures to be taken during and after the alteration to reduce detrimental offsite effects; the completion date of the proposed work, project, or structure; and such additional materials and documentation as the wetlands board may require.
C. A nonrefundable processing fee shall accompany each permit application. The fee shall be set by the applicable governing body with due regard for the services to be rendered, including the time, skill, and administrator's expense. No person shall be required to file two separate applications for permits if the proposed project will require permits under this ordinance and Chapter 13 (§28.2-1300 et seq.) of Title 28.2 of the Code of Virginia. Under those circumstances, the fee shall be established pursuant to this ordinance.
§5. All applications, maps, and documents submitted shall be open for public inspection at the office of the recording officer of this ____________ (county, city or town).
§6. Not later than 60 days after receipt of a complete
application, the wetlands board shall hold a public hearing on the application.
The applicant, local governing body, Commissioner, owner of record of any land
adjacent to the coastal primary sand dunes in question, the Virginia Institute
of Marine Science, the Department of Wildlife Resources, the State Water Control Board Department of Environmental Quality,
the Department of Transportation, and any governmental agency expressing an
interest in the application shall be notified of the hearing. The Commission or
board shall mail or email these notices not less than 20 days prior to the date
set for the hearing. The board shall also (i) cause notice of the hearing to be
published at least once in the seven days prior to such hearing in a newspaper
of general circulation in this ________ (county, city or town); (ii) post a
notice of the hearing on its website at least 14 days prior to such hearing;
and (iii) provide a copy of such notice to the Commission for submittal to the
Virginia Regulatory Town Hall. The costs of publication shall be paid by the
applicant. In the event that the board submits a correct and timely notice for
publication and the newspaper fails to publish the notice or publishes the
notice incorrectly, the board shall be deemed to have met the notice
requirements of this subsection so long as the notice is published in the next
available edition of such newspaper.
§7. A. Approval of a permit application shall require the affirmative vote of three members of a five-member board or four members of a seven-member board.
B. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. Any person may appear and be heard at the public hearing. Each witness at the hearing may submit a concise written statement of his testimony. The board shall make a record of the proceeding, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the board, and the rationale for the decision.
C. The board shall make its determination within 30 days of the hearing. If the board fails to act within that time, the application shall be deemed approved. Within 48 hours of its determination, the board shall notify the applicant and the Commissioner of its determination. If the board fails to make a determination within the 30-day period, it shall promptly notify the applicant and the Commission that the application is deemed approved.
D. If the board's decision is reviewed or appealed, the board shall transmit the record of its hearing to the Commissioner. Upon a final determination by the Commission, the record shall be returned to the board. The record shall be open for public inspection at the office of the recording officer of this ________ (county, city, or town).
§8. The board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it, securing to the Commonwealth compliance with the conditions and limitations set forth in the permit. The board may, after a hearing held pursuant to this ordinance, suspend or revoke a permit if the applicant has failed to comply with any of the conditions or limitations set forth in the permit or has exceeded the scope of the work described in the application. The board may, after a hearing, suspend a permit if the applicant fails to comply with the terms and conditions set forth in the application.
§9. In fulfilling its responsibilities under this ordinance, the board shall preserve and protect coastal primary sand dunes and beaches and prevent their despoliation and destruction. However, whenever practical, the board shall accommodate necessary economic development in a manner consistent with the protection of these features.
§10. A. In deciding whether to grant, grant in modified form, or deny a permit, the board shall consider the following:
1. The testimony of any person in support of or in opposition to the permit application;
2. The impact of the proposed development on the public health, safety, and welfare; and
3. The proposed development's conformance with standards prescribed in §28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1401 of the Code of Virginia.
B. The board shall grant the permit if all of the following criteria are met:
1. The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment.
2. The proposed development conforms with the standards prescribed in §28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1401 of the Code of Virginia.
3. The proposed activity does not violate the purposes and intent of this ordinance or Chapter 14 (§28.2-1400 et seq.) of Title 28.2 of the Code of Virginia.
C. If the board finds that any of the criteria listed in subsection B of this section are not met, the board shall deny the permit application but allow the applicant to resubmit the application in modified form.
§11. The permit shall be in writing and signed by the chairman of the board. A copy of the permit shall be transmitted to the Commissioner.
§12. No permit shall be granted without an expiration date established by the board. Upon proper application, the board may extend the permit expiration date.
§13. No permit granted by a wetlands board shall in any way affect the right of any person to seek compensation for any injury in fact incurred by him because of the permitted activity.
§29.1-203. Jurisdiction; power to serve process.
A. Conservation police officers shall have jurisdiction throughout the Commonwealth to enforce the hunting, trapping and inland fish laws and may serve process in all matters arising from violations of such laws.
B. Conservation police officers shall enforce the State Water Control Board's
regulations of the Board of Environmental Resources
designating Smith Mountain Lake as a no-discharge zone for boat sewage.
§29.1-213. Taking samples of water believed to be polluted.
Any conservation police officer appointed under the provisions
of this title may, and shall when requested by a member of the governing body
of a county, city, or
town, take samples of water from any stream in this Commonwealth when he has
reason to believe that the water may be polluted. Any conservation police
officer collecting any water sample shall take the sample in a clean container,
seal it, and send it to the State Water Control Board Department of Environmental Quality.
With the sample, the conservation police officer shall enclose a signed
statement showing in reasonable detail the time and place at which the sample
was taken. The officer shall keep the original of the statement and send the
copy with the sample.
§29.1-214. Duties of Board of Environmental Resources with respect to water samples.
Upon the receipt of any water sample sent under §29.1-213,
the State Water Control Board Department of Environmental Quality
shall have a chemical analysis of the sample made by a chemist employed by the State Water Control Board Department of Environmental Quality
or retained especially for that purpose. If the results of the analysis show
that the sample of water was polluted, the State Water
Control Board Department
of Environmental Quality shall initiate further studies and
analyses to determine the nature, extent,
and most effective measures of control of the pollution.
The State Water Control Board Department of Environmental Quality
shall then proceed as provided in Chapter 3.1 the State Water Control Law
(§62.1-44.2 et seq.) of Title 62.1.
§32.1-163. Definitions.
As used in this article, unless the context clearly requires a different meaning:
"Alternative discharging sewage system" means any
device or system which results in a point source discharge of treated sewage
for which the Board may issue a permit authorizing construction and operation
when such system is regulated by the State Water Control
Board of Environmental Resources
pursuant to a general Virginia Pollutant Discharge Elimination System permit
issued for an individual single family dwelling with flows less than or equal
to 1,000 gallons per day.
"Alternative onsite sewage system" or "alternative onsite system" means a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge.
"Betterment loan" means a loan to be provided by private lenders either directly or through a state agency, authority or instrumentality or a locality or local or regional authority serving as a conduit lender, to repair, replace, or upgrade an onsite sewage system or an alternative discharging sewage system for the purpose of reducing threats to public health and ground and surface waters, which loan is secured by a lien with a priority equivalent to the priority of a lien securing an assessment for local improvements under §15.2-2411.
"Conduit lender" means a state agency, authority or instrumentality or a locality, local or regional authority or an instrumentality thereof serving as a conduit lender of betterment loans.
"Conventional onsite sewage system" means a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield.
"Licensed onsite soil evaluator" means a person who is licensed under Chapter 23 (§54.1-2300 et seq.) of Title 54.1 as an onsite soil evaluator. A licensed onsite soil evaluator is authorized to evaluate soils and soil properties in relationship to the effects of these properties on the use and management of these soils as the locations for onsite sewage systems.
"Maintenance" means, unless otherwise provided in local ordinance, (i) performing adjustments to equipment and controls or (ii) in-kind replacement of normal wear and tear parts that do not require a construction permit for adjustment or replacement of the component such as light bulbs, fuses, filters, pumps, motors, sewer lines, conveyance lines, distribution boxes, header lines, or other like components. "Maintenance" includes pumping the tanks or cleaning the building sewer on a periodic basis. Notwithstanding any local ordinance, "maintenance" does not include replacement of tanks, drainfield piping, subsurface drainfields, or work requiring a construction permit and installer. Unless otherwise prohibited by local ordinance, a conventional onsite sewage system installer or an alternative onsite sewage system installer may perform maintenance work limited to in-kind replacement of light bulbs, fuses, filters, pumps, sewer lines, conveyance lines, distribution boxes, and header lines.
"Operate" means the act of making a decision on one's own volition (i) to place into or take out of service a unit process or unit processes or (ii) to make or cause adjustments in the operation of a unit process at a treatment works.
"Operation" means the biological, chemical, and mechanical processes of transforming sewage or wastewater to compounds or elements and water that no longer possess an adverse environmental or health impact.
"Operator" means any individual employed or contracted by any owner, who is licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 as being qualified to operate, monitor, and maintain an alternative onsite sewage system.
"Owner" means the Commonwealth or any of its political subdivisions, including sanitary districts, sanitation district commissions and authorities, any individual, any group of individuals acting individually or as a group, or any public or private institution, corporation, company, partnership, firm or association which owns or proposes to own a sewerage system or treatment works.
"Regulations" means the Sewage Handling and Disposal Regulations, heretofore or hereafter enacted or adopted by the State Board of Health.
"Review Board" means the State Sewage Handling and Disposal Appeals Review Board.
"Sewage" means water-carried and non-water-carried human excrement, kitchen, laundry, shower, bath or lavatory wastes, separately or together with such underground, surface, storm and other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments or other places.
"Sewerage system" means pipelines or conduits, pumping stations and force mains and all other construction, devices and appliances appurtenant thereto, used for the collection and conveyance of sewage to a treatment works or point of ultimate disposal.
"Subsurface drainfield" means a system installed within the soil and designed to accommodate treated sewage from a treatment works.
"Transportation" means the vehicular conveyance of sewage.
"Treatment works" means any device or system used in the storage, treatment, disposal or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power and other equipment and appurtenances, septic tanks, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for ultimate disposal of residues or effluents resulting from such treatment.
§32.1-164. Powers and duties of Board; regulations; fees; onsite soil evaluators; letters in lieu of permits; inspections; civil penalties.
A. The Board shall have supervision and control over the safe
and sanitary collection, conveyance, transportation, treatment, and disposal of
sewage by onsite sewage systems and alternative discharging sewage systems, and
treatment works as they affect the public health and welfare. The Board shall
also have supervision and control over the maintenance, inspection, and reuse
of alternative onsite sewage systems as they affect the public health and
welfare. In discharging the responsibility to supervise and control the safe
and sanitary treatment and disposal of sewage as they affect the public health
and welfare, the Board shall exercise due diligence to protect the quality of
both surface water and ground water. Upon the final adoption of a general
Virginia Pollutant Discharge Elimination permit by the State Water
Control Board of Environmental Resources,
the Board of Health shall assume the responsibility for permitting alternative discharging
sewage systems as defined in §32.1-163. All such permits shall comply with the
applicable regulations of the State Water Control
Board of Environmental Resources and
be registered with the State Water Control Board Department of Environmental Quality.
In the exercise of its duty to supervise and control the
treatment and disposal of sewage, the Board shall require and the Department
shall conduct regular inspections of alternative discharging sewage systems.
The Board shall also establish requirements for maintenance contracts for
alternative discharging sewage systems. The Board may require, as a condition
for issuing a permit to operate an alternative discharging sewage system, that
the applicant present an executed maintenance contract. Such contract shall be
maintained for the life of any general Virginia Pollutant Discharge Elimination
System permit issued by the State Water Control
Board of Environmental Resources.
B. The regulations of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage by onsite sewage systems and alternative discharging sewage systems and the maintenance, inspection, and reuse of alternative onsite sewage systems. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation:
1. A requirement that the owner obtain a permit from the
Commissioner prior to the construction, installation, modification or operation
of a sewerage system or treatment works except in those instances where a
permit is required pursuant to Chapter 3.1 the State Water Control Law (§
62.1-44.2 et seq.) of Title 62.1.
2. Criteria for the granting or denial of such permits.
3. Standards for the design, construction, installation, modification and operation of sewerage systems and treatment works for permits issued by the Commissioner.
4. Standards governing disposal of sewage on or in soils.
5. Standards specifying the minimum distance between sewerage systems or treatment works and:
a. Public and private wells supplying water for human consumption,
b. Lakes and other impounded waters,
c. Streams and rivers,
d. Shellfish waters,
e. Ground waters,
f. Areas and places of human habitation,
g. Property lines.
6. Standards as to the adequacy of an approved water supply.
7. Standards governing the transportation of sewage.
8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth.
9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works.
10. Criteria for determining the demonstrated ability of alternative onsite systems, which are not permitted through the then current sewage handling and disposal regulations, to treat and dispose of sewage as effectively as approved methods.
11. Standards for inspections of and requirements for maintenance contracts for alternative discharging sewage systems.
12. Notwithstanding the provisions of subdivision 1 above and Chapter 3.1 of Title 62.1, a requirement that the owner obtain a permit from the Commissioner prior to the construction, installation, modification, or operation of an alternative discharging sewage system as defined in §32.1-163.
13. Criteria for granting, denying, and revoking of permits for alternative discharging sewage systems.
14. Procedures for issuing letters recognizing onsite sewage sites in lieu of issuing onsite sewage system permits.
15. Performance requirements for nitrogen discharged from alternative onsite sewage systems that protect public health and ground and surface water quality.
16. Consideration of the impacts of climate change on proposed treatment works based on research and analysis from the Center for Coastal Resources Management at the Virginia Institute of Marine Science at The College of William and Mary in Virginia.
C. A fee of $75 shall be charged for filing an application for an onsite sewage system or an alternative discharging sewage system permit with the Department. Funds received in payment of such charges shall be transmitted to the Comptroller for deposit. The funds from the fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this title. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to §32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for
the waiver of fees for persons whose incomes are below the federal poverty
guidelines established by the United States U.S. Department of Health and
Human Services or when the application is for a pit privy or the repair of a
failing onsite sewage system. If the Department denies the permit for land on
which the applicant seeks to construct his principal place of residence, then
such fee shall be refunded to the applicant.
From such funds as are appropriated to the Department from the special fund, the Board shall apportion a share to local or district health departments to be allocated in the same ratios as provided for the operation of such health departments pursuant to §32.1-31. Such funds shall be transmitted to the local or district health departments on a quarterly basis.
D. In addition to factors related to the Board's responsibilities for the safe and sanitary treatment and disposal of sewage as they affect the public health and welfare, the Board shall, in establishing standards, give due consideration to economic costs of such standards in accordance with the applicable provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
E. Further a fee of $75 shall be charged for such installation and monitoring inspections of alternative discharging sewage systems as may be required by the Board. The funds received in payment of such fees shall be credited to a special fund to be appropriated by the General Assembly, as it deems necessary, to the Department for the purpose of carrying out the provisions of this section. However, $10 of each fee shall be credited to the Onsite Sewage Indemnification Fund established pursuant to §32.1-164.1:01.
The Board, in its regulations, shall establish a procedure for
the waiver of fees for persons whose incomes are below the federal poverty
guidelines established by the United States U.S. Department of Health and
Human Services.
F. Any owner who violates any provision of this section or any
regulation of the Board of Health or the State Water Control
Board of Environmental Resources relating
to alternative discharging sewage systems or who fails to comply with any order
of the Board of Health or any special final order of the State Water
Control Board Department
of Environmental Quality shall be subject to the penalties
provided in §§32.1-27 and 62.1-44.32.
In the event that a county, city, or town, or its agent, is the owner, the county, city, or town, or its agent may initiate a civil action against any user or users of an alternative discharging sewage system to recover that portion of any civil penalty imposed against the owner which directly resulted from violations by the user or users of any applicable federal, state, or local laws, regulations, or ordinances.
G. The Board shall establish and implement procedures for issuance of letters recognizing the appropriateness of onsite sewage site conditions in lieu of issuing onsite sewage system permits. The Board may require that a survey plat be included with an application for such letter. Such letters shall state, in language determined by the Office of the Attorney General and approved by the Board, the appropriateness of the soil for an onsite sewage system; no system design shall be required for issuance of such letter. The letter may be recorded in the land records of the clerk of the circuit court in the jurisdiction where all or part of the site or proposed site of the onsite sewage system is to be located so as to be a binding notice to the public, including subsequent purchases of the land in question. Upon the sale or transfer of the land which is the subject of any letter, the letter shall be transferred with the title to the property. A permit shall be issued on the basis of such letter unless, from the date of the letter's issuance, there has been a substantial, intervening change in the soil or site conditions where the onsite sewage system is to be located. The Board, Commissioner, and the Department shall accept evaluations from licensed onsite soil evaluators for the issuance of such letters, if they are produced in accordance with the Board's established procedures for issuance of letters. The Department shall issue such letters within 20 working days of the application filing date when evaluations produced by licensed onsite soil evaluators are submitted as supporting documentation. The Department shall not be required to do a field check of the evaluation prior to issuing such a letter or a permit based on such letter; however, the Department may conduct such field analyses as deemed necessary to protect the integrity of the Commonwealth's environment. Applicants for such letters in lieu of onsite sewage system permits shall pay the fee established by the Board for the letters' issuance and, upon application for an onsite sewage system permit, shall pay the permit application fee.
H. The Board shall establish a program for the operation and maintenance of alternative onsite systems. The program shall require:
1. The owner of an alternative onsite sewage system, as defined in §32.1-163, to have that system operated by a licensed operator, as defined in §32.1-163, and visited by the operator as specified in the operation permit;
2. The licensed operator to provide a report on the results of the site visit utilizing the web-based system required by this subsection. A fee of $1 shall be paid by the licensed operator at the time the report is filed. Such fees shall be credited to the Onsite Operation and Maintenance Fund established pursuant to §32.1-164.8;
3. A statewide web-based reporting system to track the operation, monitoring, and maintenance requirements of each system, including its components. The system shall have the capability for pre-notification of operation, maintenance, or monitoring to the operator or owner. Licensed operators shall be required to enter their reports onto the system. The Department of Health shall utilize the system to provide for compliance monitoring of operation and maintenance requirements throughout the state. The Commissioner shall consider readily available commercial systems currently utilized within the Commonwealth; and
4. Any additional requirements deemed necessary by the Board.
I. The Board shall promulgate regulations governing the requirements for maintaining alternative onsite sewage systems.
J. The Board shall establish a uniform schedule of civil penalties for violations of (i) regulations promulgated pursuant to subsection B and (ii) onsite treatment system pump-out requirements promulgated pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) in localities in which compliance with such onsite treatment system pump-out requirements is managed and enforced by the Department that are not remedied within 30 days after service of notice from the Department. Civil penalties collected pursuant to this chapter shall be credited to the Environmental Health Education and Training Fund established pursuant to §32.1-248.3.
This schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be not more than $100 for the initial violation and not more than $150 for each additional violation. Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more than once in any 10-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000. Penalties shall not apply to unoccupied structures which do not contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases. The Department may pursue other remedies as provided by law; however, designation of a particular violation for a civil penalty pursuant to this section shall be in lieu of criminal penalties, except for any violation that contributes to or is likely to contribute to the pollution of public or private water supplies or the contraction or spread of infectious, contagious, or dangerous diseases.
The Department may issue a civil summons ticket as provided by law for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the Department prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged.
If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court with jurisdiction in the same manner and with the same right of appeal as provided for by law. In any trial for a scheduled violation, the Department shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding.
This section shall not be interpreted to allow the imposition of civil penalties for activities related to land development.
K. The Department shall establish procedures for requiring a survey plat as part of an application for a permit or letter for any onsite sewage or alternative discharging sewage system, and for granting waivers for such requirements. In all cases, it shall be the landowner's responsibility to ensure that the system is properly located as permitted.
L. Effective July 1, 2023, requirements promulgated under the
Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) directly related to
compliance with onsite sewage treatment system pump-outs shall be managed and
enforced by the Department in Accomack, Essex, Gloucester, King and Queen, King
William, Lancaster, Mathews, Middlesex, Northampton, Northumberland, Richmond,
and Westmoreland Counties, and the incorporated towns within those counties.
Licensed operators conducting onsite sewage treatment system pump-outs pursuant
to requirements promulgated under the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) in
localities managed and enforced by the Department shall provide a report on the
results of the site visit using a web-based reporting system developed by the
Department. Any person who violates the onsite treatment system pump-out
requirements promulgated pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.) in a
locality in which compliance with such onsite treatment system pump-out
requirements is managed and enforced by the Department is guilty of a Class 3
misdemeanor.
§32.1-176.7. Other agencies to cooperate with Department.
The Department of Housing and Community Development and the State Water Control Board Department of Environmental Quality
shall cooperate fully and promptly with the Department of Health in the
administration of this article.
§32.1-233. Radiation Advisory Board; composition; duties generally.
A. The Radiation Advisory Board shall consist of ten appointive 10 nonlegislative citizen
members and the
six ex officio members specified below.
The Governor shall appoint to the Advisory Board individuals from industry,
labor, and agriculture as well as individuals
with scientific training in one or more of the following fields: radiology,
medicine, radiation or health physics, or related sciences, with specialization
in ionizing radiation. Not more than two individuals shall be specialists in
any one of the above-named fields. Members of the Advisory Board shall serve at
the pleasure of the Governor. The Commissioner shall be an ex officio member
and chairman of the Advisory Board. The Commissioner of Labor and Industry, the
Commissioner of Agriculture and Consumer Services, the State Coordinator of
Emergency Management, the Director of the Department
of Environmental Quality, and the Director of the Virginia Institute of Marine
Science shall be ex officio members of the Advisory Board.
B. The Advisory Board shall meet at least annually and shall:
1. Review and evaluate policies and programs of the Commonwealth relating to ionizing radiation; and
2. Make recommendations to the Commissioner and the Board of
Health, the Director of the Department
of Environmental Quality, and the Virginia Waste Management
Board of Environmental Resources and
furnish such technical advice as may be required,
on matters relating to development, utilization,
and regulation of sources of ionizing radiation.
§36-99.6. Underground and aboveground storage tank inspections.
A. The Board of Housing and Community Development shall
incorporate, as part of the Building Code, regulations adopted and promulgated
by the State Water Control Board of Environmental Resources
governing the installation, repair, upgrade,
and closure of underground and aboveground storage tanks.
B. Inspections undertaken pursuant to such Building Code regulations shall be done by employees of the local building department or another individual authorized by the local building department.
§44-146.30. Department of Emergency Management to monitor transportation of hazardous radioactive materials.
The State
Coordinator of the Department
of Emergency Management, pursuant to regulations promulgated by the Virginia Waste Management
Board of Environmental Resources, will shall
maintain a register of shippers of hazardous radioactive materials and monitor
the transportation within the Commonwealth of those hazardous radioactive
materials, as defined by the Virginia Waste Management
Board of Environmental Resources, which that
may constitute a significant potential danger to the citizens of the
Commonwealth in the event of accidental spillage or release. The regulations
promulgated by the Board of Environmental Resources
shall not be in conflict with federal statutes, rules, or regulations. Other
agencies and commissions of the Commonwealth shall cooperate with the Virginia Waste Management
Board of Environmental Resources in
the formulation of regulations as herein
provided in this section.
§45.2-1701.1. Public disclosure of certain electric generating facility closures.
A. The provisions of this section shall apply to any electric generating facility that:
1. Has a nameplate generating capacity of 80 megawatts or more;
2. Is located in the Commonwealth;
3. Emits carbon dioxide as a byproduct of combusting fuel, whether or not certificated by the State Corporation Commission pursuant to subsection D of §56-580; and
4. Is subject to, and not exempt from, regulations adopted pursuant to subsection E of §10.1-1308 or §10.1-1330.
B. Within 30 days of an owner of an electric generating facility making public the decision to close such facility, or within 30 days of the owner of an electric generating facility making a filing with the U.S. Securities and Exchange Commission regarding a material impact to the cost, operations, or financial condition of the owner, which material impact is a direct precursor to the closure of the electric generating facility, the owner shall send a written notice of the impending closure to:
1. The governing body of the locality where the facility is located;
2. The governing body of any locality adjoining the locality where the facility is located;
3. Any town council located within a county described in subdivision 1;
4. Any planning district commission of any locality described in subdivision 1 or 2;
5. The State Corporation Commission Division of Public Utility Regulation;
6. The Department and the Division;
7. The Department of Housing and Community Development;
8. PJM Interconnection, LLC;
9. The Virginia Employment Commission;
10. The Department of Environmental Quality; and
11. The Virginia Council on Environmental Justice.
C. The notice required by subsection B shall include, at a minimum,
(i) the anticipated closure date of the facility; (ii) references to any
website maintained by the owner containing closure information; (iii) a list of
permits obtained from a local government, the State Air
Pollution Control Board, the State Water Control Board of Environmental Resources, or
the Department of Environmental Quality, including the permit number and date
of issuance; (iv) anticipated future use of the facility site, if known; (v)
workforce transition assistance information; and (vi) decommissioning
information. If the owner of the facility is a registrant with the U.S.
Securities and Exchange Commission, any filings mentioning the impending
closure shall also be included with the notice.
D. In the six months following receipt of the notice required by subsection B, the governing body of the locality where the facility is located shall conduct at least three public hearings, which may be part of a regular meeting agenda, where at least one representative of the owner of the facility being closed shall be present, make a presentation regarding the impending closure, and take questions from the governing body and the public.
E. In the six months following receipt of the notice required by subsection B, the planning district commission of the locality where the facility is located shall conduct at least one public hearing, which may be part of a regular meeting agenda, where at least one representative of the owner of the facility being closed shall be present, make a presentation regarding the impending closure, and take questions from the planning district commission and the public.
F. The Division shall maintain a public website listing the
facilities subject to this section and their anticipated closure dates, if such
dates are reasonably known by virtue of the laws of the Commonwealth or a
public record or filing with an agency of the Commonwealth, including the State
Corporation Commission, and a link shall be provided to the facilities'
environmental protection or remediation obligations included in permits
obtained from the Department, State Air Pollution Control
Board, State Water Control Board of
Environmental Resources, Department of Environmental
Quality, or local governing body. At least every 12 months, the State
Corporation Commission shall transmit to the Division any information that it
reasonably believes would necessitate updates to the anticipated closure dates
or other information contained on the Division's website.
G. As providing advance notice to affected communities of an impending closure of a facility under this section is a matter of vital importance for public policy, this section shall be liberally construed. The obligations imposed on agencies of the Commonwealth under this section are to be construed in favor of public disclosure of the information required by subsection F.
H. Notwithstanding the provisions of subsection A, the provisions of this section shall not apply to any electric generating facility that has a nameplate generating capacity of 90 megawatts or less and that filed a deactivation notice with PJM Interconnection, LLC, prior to September 1, 2019.
§45.2-1711. Schedule for the Plan.
A. The Division shall complete the Plan.
B. Prior to the completion of the Plan and each update thereof, the Division shall present drafts to, and consult with, the Virginia Coal and Energy Commission established pursuant to Chapter 25 (§30-188 et seq.) of Title 30 and the Commission on Electric Utility Regulation established pursuant to Chapter 31 (§30-201 et seq.) of Title 30.
C. The Plan shall be updated by the Division and submitted as provided in §45.2-1713 by October 1, 2014, and every fourth October 1 thereafter. In addition, the Division shall provide interim updates on the Plan by October 1 of the third year of each Governor's administration. Updated reports shall specify any progress attained toward each proposed action of the Plan, as well as reassess goals for energy conservation on the basis of progress to date in meeting the goals in the previous Plan and lessons learned from attempts to meet such goals.
D. Beginning with the Plan update in 2014, the Division shall
include a section setting forth energy policy positions relevant to any
potential regulations proposed or promulgated by the State Air
Pollution Control Board of
Environmental Resources to reduce carbon dioxide emissions
from fossil fuel-fired electric generating units under §111(d) of the federal
Clean Air Act, 42 U.S.C. §7411(d). In such section of the Plan, the Division
shall address policy options for establishing separate standards of performance
pursuant to §111(d) of the federal Clean Air Act, 42 U.S.C. §7411(d), for
carbon dioxide emissions from existing fossil fuel-fired electric generating
units to promote the Plan's overall goal of fuel diversity as follows:
1. The Plan shall address policy options for establishing the standards of performance for existing coal-fired electric generating units, including the following factors:
a. The most suitable system of emission reduction that (i) takes into consideration (a) the cost and benefit of achieving such reduction, (b) any non-air quality health and environmental impacts, and (c) the energy requirements of the Commonwealth and (ii) has been adequately demonstrated for coal-fired electric generating units that are subject to the standard of performance;
b. Reductions in emissions of carbon dioxide that can be achieved through measures reasonably undertaken at each coal-fired electric generating unit; and
c. Increased efficiencies and other measures that can be implemented at each coal-fired electric generating unit to reduce carbon dioxide emissions from the unit without converting from coal to other fuels, co-firing other fuels with coal, or limiting the utilization of the unit.
2. The Plan shall also address policy options for establishing the standards of performance for existing gas-fired electric generating units, including the following factors:
a. The application of the criteria specified in subdivisions 1 a and b to natural gas-fired electric generating units instead of to coal-fired electric generating units; and
b. Increased efficiencies and other measures that can be reasonably implemented at the unit to reduce carbon dioxide emissions from the unit without switching from natural gas to other lower-carbon fuels or limiting the utilization of the unit.
3. The Plan shall examine policy options for state regulatory action to adopt less stringent standards or longer compliance schedules than those provided for in applicable federal rules or guidelines based on analysis of the following:
a. Consumer impacts, including any disproportionate impacts of energy price increases on lower-income populations;
b. Unreasonable cost of reducing emissions resulting from plant age, location, or basic process design;
c. Physical difficulties with or impossibility of implementing emission reduction measures;
d. The absolute cost of applying the performance standard to the unit;
e. The expected remaining useful life of the unit;
f. The economic impacts of closing the unit, including expected job losses, if the unit is unable to comply with the performance standard; and
g. Any other factors specific to the unit that make application of a less stringent standard or longer compliance schedule more reasonable.
4. The Plan shall identify options, to the maximum extent permissible, for any federally required regulation of carbon dioxide emissions from existing fossil fuel-fired electric generating units and regulatory mechanisms that provide flexibility in complying with such standards, including the averaging of emissions, emissions trading, or other alternative implementation measures that are determined to further the interests of the Commonwealth and its citizens.
§46.2-1176. Definitions.
The following words and
phrases when As used
in this article shall have the
following meanings except where,
unless the context clearly indicates requires a different meaning:
"Basic, test and repair program" means a motor vehicle emissions inspection system established by regulations of the Board which shall designate the use of an OBD-II (on-board diagnostic system) with wireless capability, and a two-speed idle analyzer as the only authorized testing equipment. Only those computer software programs and emissions testing procedures necessary to comply with the applicable provisions of Title I of the federal Clean Air Act, 42 U.S.C. §7401 et seq., shall be included. Such testing equipment shall be approvable for motor vehicle manufacturers' warranty repairs.
"Board" means the State Air
Pollution Control Board of
Environmental Resources.
"Certificate of emissions inspection" means a document, device, or symbol, prescribed by the Director and issued pursuant to this article, which indicates that (i) a motor vehicle has satisfactorily complied with the emissions standards and passed the emissions inspection provided for in this article; (ii) the requirement of compliance with such emissions standards has been waived; or (iii) the motor vehicle has failed such emissions inspection.
"Director" means the Director of the Department of Environmental Quality.
"Emissions inspection station" means any facility or portion of a facility that has obtained an emissions inspection station permit from the Director authorizing the facility to perform emissions inspections in accordance with this article.
"Enhanced emissions inspection program" means a motor vehicle emissions inspection system established by regulations of the Board that shall designate, as the only authorized testing equipment for emissions inspection stations, (i) the use of the ASM 50-15 (acceleration simulation mode or method) together with an OBD-II (on-board diagnostic system) with wireless capability, (ii) the use of the ASM 50-15 together with the use of a dynamometer, and (iii) two-speed tailpipe testing equipment. Possession and availability of a dynamometer shall be required for enhanced emissions inspection stations. Only those computer software programs and emissions testing procedures necessary to comply with applicable provisions of Title I of the federal Clean Air Act, 42 U.S.C. §7401 et seq., shall be included. Such testing equipment shall be approvable for motor vehicle manufacturers' warranty repairs. An enhanced emissions inspection program shall include remote sensing and an on-road clean screen program as provided in this article.
"Fleet emissions inspection station" means any inspection facility operated under a permit issued to a qualified fleet owner or lessee as determined by the Director.
"Motor vehicle" means any vehicle that:
1. Is designed for the transportation of persons or property; and
2. Is powered by an internal combustion engine.
"On-road clean screen program" means a program that allows a motor vehicle owner to voluntarily certify compliance with emissions standards by means of on-road remote sensing.
"On-road emissions inspector" means the entity or entities authorized by the Department of Environmental Quality to perform on-road testing, including on-road testing in accordance with the on-road clean screen program.
"On-road testing" means tests of motor vehicle emissions or emissions control devices by means of roadside pullovers or remote sensing devices.
"Program coordinator" means any person or corporation that has entered into a contract with the Director to provide services in accordance with this article.
"Qualified hybrid motor vehicle" means a motor vehicle that (i) meets or exceeds all applicable regulatory requirements, (ii) meets or exceeds the applicable federal motor vehicle emissions standards for gasoline-powered passenger cars, and (iii) can draw propulsion energy both from gasoline or diesel fuel and a rechargeable energy storage system.
"Referee station" means an inspection facility operated or used by the Department of Environmental Quality (i) to determine program effectiveness, (ii) to resolve emissions inspection conflicts between motor vehicle owners and emissions inspection stations, and (iii) to provide such other technical support and information, as appropriate, to emissions inspection stations and vehicle owners.
"Remote sensing" means the measurement of motor vehicle emissions through electronic or light-sensing equipment from a remote location such as the roadside. Remote sensing equipment may include devices to detect and record the vehicle's registration or other identification numbers.
"Test and repair" means motor vehicle emissions inspection facilities that perform official motor vehicle emissions inspections and may also perform vehicle repairs. No regulation of the Board pertaining to test and repair shall bar inspection facilities from also performing vehicle repairs. Emissions inspections and vehicle safety inspections may be performed in the same service bay, provided that the facility is both an emissions inspection station and an official safety inspection station pursuant to §§ 46.2-1163 and 46.2-1166. Emissions inspections may be performed in any service bay of the emissions inspection station or, if by wireless means, in any other area on the premises of the emissions inspection station.
"Validation program" or "program validation" means a program approved by the Director by which vehicles are randomly identified and provided a free emissions inspection for the purpose of monitoring the effectiveness of the emissions inspection program. A "validation program" may be conducted at an emissions inspection station, as defined by §46.2-1176, in conjunction with a state safety inspection or using on-road testing.
§46.2-1179.1. Board to adopt clean alternative fuel fleet standards for motor vehicles; penalty.
A. For purposes of this section:
"Clean alternative fuel" means any fuel, including methanol, ethanol, other alcohols, reformulated gasoline, diesel, natural gases, liquefied petroleum gas, hydrogen, and electricity or other power source used in a clean fuel vehicle that complies with the standards applicable to such vehicle under the federal Clean Air Act, 42 U.S.C. §7401 et seq., when using such fuel or other power source. In the case of a flexible fuel vehicle or dual fuel vehicle, "clean alternative fuel" means only a fuel for which the vehicle was certified when operating on clean alternative fuel.
"Fleet" means any centrally fueled fleet of ten 10
or more motor vehicles owned or operated by a single entity. "Fleet"
does not include motor vehicles held for lease or rental to the general public,
motor vehicles held for sale by motor vehicle dealers, motor vehicles used for
manufacturer product tests, law-enforcement and other emergency vehicles, or
nonroad vehicles, including farm and construction vehicles.
B. The Board may adopt by regulation motor vehicle clean alternative fuel fleet standards consistent with the provisions of Part C of Title II of the federal Clean Air Act for model years beginning with the model year 1998 or the first succeeding model year for which adoption of such standards is practicable. If adoption and implementation by the Board of an equivalent air pollution reduction program is approved by the federal Environmental Protection Agency, the regulation and program authorized by this section shall not become effective. Such regulations shall contain the minimum phase-in schedule contained in §246 (b) of Part C of Title II of the Clean Air Act. However, nothing in this section shall preclude affected fleet owners from exceeding the minimum requirements of the federal Clean Air Act, 42 U.S.C. §7401 et seq. Beginning in 1995 and upon adoption of the standards by the Board, the Board shall require the fleet owned by the federal government to meet the clean alternative fuel fleet standard and phase-in schedule established by the Board. If necessary to meet the Board's standards and phase-in schedule, the Board shall require fleets owned by the federal government to convert a portion of existing fleet vehicles to the use of clean alternative fuels as defined by the federal Clean Air Act. The standards specified in this subsection shall apply only to (i) motor vehicles registered in localities designated by the federal Environmental Protection Agency, pursuant to the federal Clean Air Act, as serious, severe, or extreme air quality nonattainment areas, or as maintenance areas formerly designated serious, severe, or extreme and (ii) motor vehicles not registered in the above-mentioned localities, but having either (a) a base of operations or (b) a majority of their annual travel in one or more of those localities.
C. An owner of a covered fleet shall not use any motor vehicle or motor vehicle engine which is manufactured during or after the first model year to which the standards specified in subsection A of this section are applicable, if such vehicle or engine is registered or has its base of operations in the localities specified in subsection B of this section and has not been certified in accordance with regulations promulgated by the Board. The Board may promulgate regulations providing for reasonable exemptions consistent with the provisions of Part C of Title II of the federal Clean Air Act. Motor vehicles exempted from the provisions of this section shall forever be exempt.
D. Any person that violates the requirements of this section or any regulation adopted hereunder shall be subject to the penalties in §§ 46.2-1187 and 46.2-1187.2. Each day of violation shall be a separate offense, and each motor vehicle shall be treated separately in assessing violations.
E. In order to limit adverse economic and administrative impacts on covered fleets operating both in Virginia and in neighboring states, the Department of Environmental Quality shall, to the maximum extent practicable, coordinate the provisions of its regulations promulgated under this section with neighboring states' statutes and regulations relating to use of clean alternative fuels by motor vehicle fleets.
F. The State Corporation Commission, as to matters within its
jurisdiction, and the Department of Environmental Quality, as to other matters,
may, should they deem such action necessary, promulgate regulations necessary
or convenient to ensure the availability of clean alternative fuels to
operators of fleets covered by the provisions of this section. The State Air Pollution Control
Board may delegate to the Commissioner of Agriculture its authority under the
Air Pollution Control Law of Virginia, Chapter 13
(§10.1-1300 et seq.) of Title 10.1,
to implement and enforce any provisions of its regulations covering the
availability of clean alternative fuels. Upon receiving such delegation, the
authority to implement and enforce the regulations under the Air Pollution
Control Law of Virginia
shall be vested solely in the Commissioner, notwithstanding any provision of
law contained in Title 10.1, except as provided in this section. The State Air Pollution Control
Board, in delegating its authority under this section, may make the delegation
subject to any conditions it deems appropriate to ensure effective
implementation of the regulations according to the policies of the State Air Pollution Control
Board.
§46.2-1304.1. Localities may regulate construction and parking of commercial motor vehicles used to transport municipal solid waste; penalty.
The governing body of any county, city, or town may by ordinance provide that:
1. No commercial motor vehicle used to transport municipal solid waste shall be parked anywhere within the county, city, or town, except at locations zoned or otherwise authorized for such use by applicable ordinance, special exception, or variance;
2. Any such commercial motor vehicle found parked at a nonauthorized location may be towed or removed from that location as provided in §46.2-1231; and
3. The cargo compartment of every commercial motor vehicle that is used to transport municipal solid waste shall be so constructed so as to prevent the escape of municipal solid waste therefrom. Such ordinances shall exclude from their provisions vehicles owned or operated by persons transporting municipal solid waste from their residences to a permitted transfer or disposal facility.
No such ordinance shall impose, for any violation of any of its provisions, a penalty greater than provided for a traffic infraction as provided in §46.2-113. Any such penalty shall be in addition to any vehicle towing and storage charges.
For the purposes of this section, "municipal solid
waste" shall have the meaning prescribed by the Virginia
Waste Management Board of
Environmental Resources by regulation (9VAC20-80-10).
For the purposes of this section and local ordinances adopted under this section, "commercial motor vehicle" shall have the meaning prescribed in §46.2-341.4.
§54.1-505. Qualification for an asbestos contractor's license.
To qualify for an asbestos contractor's license, an applicant shall:
1. Except as provided in §54.1-504, ensure that each of his employees or agents who will come into contact with asbestos or who will be responsible for an asbestos project is licensed as an asbestos supervisor or worker; and
2. Demonstrate to the satisfaction of the Board that the
applicant and his employees or agents are familiar with and are capable of
complying fully with all applicable requirements, procedures and standards of
the United States U.S. Environmental Protection
Agency, the United States U.S. Occupational Safety and
Health Administration, the Department of Labor and Industry, and the State Air Pollution Control
Board of Environmental Resources
covering any part of an asbestos project.
§54.1-2300. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals.
"Onsite sewage system" means a conventional onsite sewage system or alternative onsite sewage system as defined in §32.1-163.
"Operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include testing or evaluation to control waterworks or wastewater works operations or to operate and maintain onsite sewage systems. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of waterworks or wastewater works.
"Owner" means the Commonwealth of Virginia, or any political subdivision thereof, any public or private institution, corporation, association, firm or company organized or existing under the laws of this Commonwealth or of any other state or nation, or any person or group of persons acting individually or as a group, who own, manage, or maintain waterworks or wastewater works.
"Person" means any individual, group of individuals, a corporation, a partnership, a business trust, an association or other similar legal entity engaged in operating waterworks or wastewater works.
"Wastewater works" means each system of (i) sewerage
systems or sewage treatment works, serving more than 400 persons, as set forth
in §62.1-44.18; (ii) sewerage systems or sewage treatment works serving fewer
than 400 persons, as set forth in §62.1-44.18, if so certified by the State Water Control Board of Environmental Resources;
and (iii) facilities for discharge to state waters of industrial wastes or
other wastes, if certified by the State Water Control
Board of Environmental Resources.
"Waterworks" means each system of structures and appliances used in connection with the collection, storage, purification, and treatment of water for drinking or domestic use and the distribution thereof to the public, except distribution piping. Systems serving fewer than 400 persons shall not be considered to be a waterworks unless certified by the Board to be such.
§54.1-2301. Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals; membership; terms; duties.
A. The Board for Waterworks and Wastewater Works Operators and
Onsite Sewage System Professionals shall consist of 11 members as follows: the
Director of the Office of Water Programs of the State Department of Health, or
his designee, the Executive Director of the State Water
Control Board of Environmental Resources,
or his designee, a currently employed waterworks operator having a valid
license of the highest classification issued by the Board, a currently employed
wastewater works operator having a valid license of the highest classification
issued by the Board, a local or regional representative of the Department of
Health, a representative of an owner of a waterworks, a representative of an
owner of a wastewater works, a licensed alternative onsite sewage system
operator, a licensed alternative onsite sewage system installer, a licensed
onsite soil evaluator, and one nonlegislative citizen member. The alternative
onsite sewage system operator, alternative onsite sewage system installer, and
onsite soil evaluator shall have practiced for at least five consecutive years
immediately prior to appointment. No owner shall be represented on the Board by
more than one representative or employee operator. The term of Board members
shall be four years except for members
serving ex officio who shall serve terms coincident with their terms of office.
B. 1. The Board shall examine waterworks and wastewater works operators and issue licenses. The licenses may be issued in specific operator classifications to attest to the competency of an operator to supervise and operate waterworks and wastewater works while protecting the public health, welfare, and property and conserving and protecting the water resources of the Commonwealth.
2. The Board shall, upon application by an individual, and without examination pursuant to subdivision 1, recognize licenses or certificates issued by another state as fulfillment of qualifications for licensure in the Commonwealth if the following conditions are met:
a. The individual holds a current and valid professional or occupational license or government certification in another state in a profession or occupation with a similar scope of practice, as determined by the Board;
b. The individual has held the professional or occupational license or government certification in the other state for at least three years;
c. The other state or state of original licensure required the individual to pass an examination and to meet certain standards related to education, training, or experience;
d. There are no pending investigations or unresolved complaints against the individual, and the other state holds the individual in good standing;
e. The individual does not have a disqualifying criminal record as determined by the Board in accordance with §54.1-204;
f. No other state has imposed discipline on the licensee, except for discipline involving only a financial penalty and no harm to the health or economic well-being of the public; and
g. The individual pays all applicable fees.
3. For the purposes of this subsection, "other state" or "another state" means any state, territory, possession, or jurisdiction of the United States.
C. The Board shall establish a program for licensing individuals as onsite soil evaluators, onsite sewage system installers, and onsite sewage system operators.
D. The Board, in consultation with the Board of Health, shall adopt regulations for the licensure of (i) onsite soil evaluators; (ii) installers of alternative onsite sewage systems, as defined in §32.1-163; and (iii) operators of alternative onsite sewage systems, as defined in §32.1-163. Such regulations shall include requirements for (a) minimum education and training, including approved training courses; (b) relevant work experience; (c) demonstrated knowledge and skill; (d) application fees to cover the costs of the program, renewal fees, and schedules; (e) the division of onsite soil evaluators into classes, one of which shall be restricted to the design of conventional onsite sewage systems; and (f) other criteria the Board deems necessary.
E. The Board shall permit any wastewater works operator to sit for the conventional onsite sewage system operator examination.
§55.1-2417. Escheat of property with hazardous materials.
In addition to any other remedy provided by law, the Virginia Waste Management
Board of Environmental Resources,
pursuant to its authority granted in §10.1-1402, or the Department of
Environmental Quality, shall have recourse against any prior owner or the
estate of any prior owner for the costs of cleanup of escheated property in or
upon which any hazardous material as defined in §44-146.34 is found.
§56-585.1. Generation, distribution, and transmission rates after capped rates terminate or expire.
A. During the first six months of 2009, the Commission shall,
after notice and opportunity for hearing, initiate proceedings to review the
rates, terms,
and conditions for the provision of generation, distribution, and transmission services of
each investor-owned incumbent electric utility. Such proceedings shall be
governed by the provisions of Chapter 10 (§56-232 et seq.), except as modified
herein. In such proceedings the Commission shall determine fair rates of return
on common equity applicable to the generation and distribution services of the
utility. In so doing, the Commission may use any methodology to determine such
return it finds consistent with the public interest, but such return shall not
be set lower than the average of the returns on common equity reported to the
Securities and Exchange Commission for the three most recent annual periods for
which such data are available by not less than a majority, selected by the
Commission as specified in subdivision 2 b, of other investor-owned electric
utilities in the peer group of the utility, nor shall the Commission set such
return more than 300 basis points higher than such average. The peer group of
the utility shall be determined in the manner prescribed in subdivision 2 b.
The Commission may increase or decrease such combined rate of return by up to
100 basis points based on the generating plant performance, customer service,
and operating efficiency of a utility, as compared to nationally recognized
standards determined by the Commission to be appropriate for such purposes. In
such a proceeding, the Commission shall determine the rates that the utility
may charge until such rates are adjusted. If the Commission finds that the
utility's combined rate of return on common equity is more than 50 basis points
below the combined rate of return as so determined, it shall be authorized to
order increases to the utility's rates necessary to provide the opportunity to
fully recover the costs of providing the utility's services and to earn not
less than such combined rate of return. If the Commission finds that the
utility's combined rate of return on common equity is more than 50 basis points
above the combined rate of return as so determined, it shall be authorized
either (i) to order reductions to the utility's rates it finds appropriate,
provided that the Commission may not order such rate reduction unless it finds
that the resulting rates will provide the utility with the opportunity to fully
recover its costs of providing its services and to earn not less than the fair
rates of return on common equity applicable to the generation and distribution
services;,
or (ii) to direct that 60 percent of the amount of the utility's earnings that
were more than 50 basis points above the fair combined rate of return for
calendar year 2008 be credited to customers' bills, in which event such credits
shall be amortized over a period of six to 12 months, as determined at the
discretion of the Commission, following the effective date of the Commission's
order and be allocated among customer classes such that the relationship
between the specific customer class rates of return to the overall target rate
of return will have the same relationship as the last approved allocation of
revenues used to design base rates. Commencing in 2011, the Commission, after
notice and opportunity for hearing, shall conduct reviews of the rates, terms
and conditions for the provision of generation, distribution and transmission
services by each investor-owned incumbent electric utility, subject to the
following provisions:
1. Rates, terms and conditions for each service shall be reviewed separately on an unbundled basis, and such reviews shall be conducted in a single, combined proceeding. Pursuant to subsection A of §56-585.1:1, the Commission shall conduct a review for a Phase I Utility in 2020, utilizing the three successive 12-month test periods beginning January 1, 2017, and ending December 31, 2019. Thereafter, reviews for a Phase I Utility will be on a triennial basis with subsequent proceedings utilizing the three successive 12-month test periods ending December 31 immediately preceding the year in which such review proceeding is conducted. Pursuant to subsection A of § 56-585.1:1, the Commission shall conduct a review for a Phase II Utility in 2021, utilizing the four successive 12-month test periods beginning January 1, 2017, and ending December 31, 2020, with subsequent reviews on a biennial basis commencing in 2023, with such proceedings utilizing the two successive 12-month test periods ending December 31 immediately preceding the year in which such review proceeding is conducted. For purposes of this section, a Phase I Utility is an investor-owned incumbent electric utility that was, as of July 1, 1999, not bound by a rate case settlement adopted by the Commission that extended in its application beyond January 1, 2002, and a Phase II Utility is an investor-owned incumbent electric utility that was bound by such a settlement.
2. Subject to the provisions of subdivision 6, the fair rate of return on common equity applicable separately to the generation and distribution services of such utility, and for the two such services combined, and for any rate adjustment clauses approved under subdivision 5 or 6, shall be determined by the Commission during each such review, as follows:
a. The Commission may use any methodology to determine such return it finds consistent with the public interest. However, for a Phase I Utility, for applications received by the Commission on or after January 1, 2020, such return shall not be set lower than the average of either (i) the returns on common equity reported to the Securities and Exchange Commission for the three most recent annual periods for which such data are available by not less than a majority, selected by the Commission as specified in subdivision 2 b, of other investor-owned electric utilities in the peer group of the utility subject to such triennial review or (ii) the authorized returns on common equity that are set by the applicable regulatory commissions for the same selected peer group, nor shall the Commission set such return more than 150 basis points higher than such average.
b. For a Phase I Utility, in selecting such majority of peer group investor-owned electric utilities for applications received by the Commission on or after January 1, 2020, the Commission shall first remove from such group the two utilities within such group that have the lowest reported or authorized, as applicable, returns of the group, as well as the two utilities within such group that have the highest reported or authorized, as applicable, returns of the group, and the Commission shall then select a majority of the utilities remaining in such peer group. In its final order regarding such triennial review, the Commission shall identify the utilities in such peer group it selected for the calculation of such limitation. With respect to a Phase I Utility, for purposes of this subdivision 2, an investor-owned electric utility shall be deemed part of such peer group if (i) its principal operations are conducted in the southeastern United States east of the Mississippi River in either the states of West Virginia or Kentucky or in those states south of Virginia, excluding the state of Tennessee, (ii) it is a vertically-integrated electric utility providing generation, transmission, and distribution services whose facilities and operations are subject to state public utility regulation in the state where its principal operations are conducted, (iii) it had a long-term bond rating assigned by Moody's Investors Service of at least Baa at the end of the most recent test period subject to such review, and (iv) it is not an affiliate of the utility subject to such review or a utility whose fair rate of return on common equity is determined by the Commission.
c. The Commission may increase or decrease the utility's combined rate of return for generation and distribution services by up to 50 basis points based on factors that may include reliability, generating plant performance, customer service, and operating efficiency of a utility. Any such adjustment to the combined rate of return for generation and distribution services shall include consideration of nationally recognized standards determined by the Commission to be appropriate for such purposes.
d. In any Current Proceeding, the Commission shall determine
whether the Current Return has increased, on a percentage basis, above the
Initial Return by more than the increase, expressed as a percentage, in the
United States Average Consumer Price Index for all items, all urban consumers
(CPI-U), as published by the Bureau of Labor Statistics of the United States U.S. Department of Labor,
since the date on which the Commission determined the Initial Return. If so,
the Commission may conduct an additional analysis of whether it is in the
public interest to utilize such Current Return for the Current Proceeding then
pending. A finding of whether the Current Return justifies such additional
analysis shall be made without regard to any enhanced rate of return on common
equity awarded pursuant to the provisions of subdivision 6. Such additional
analysis shall include, but not be limited to, a consideration of overall
economic conditions, the level of interest rates and cost of capital with
respect to business and industry, in general, as well as electric utilities, the
current level of inflation and the utility's cost of goods and services, the
effect on the utility's ability to provide adequate service and to attract
capital if less than the Current Return were utilized for the Current
Proceeding then pending, and such other factors as the Commission may deem
relevant. If, as a result of such analysis, the Commission finds that use of
the Current Return for the Current Proceeding then pending would not be in the
public interest, then the lower limit imposed by subdivision 2 a on the return
to be determined by the Commission for such utility shall be calculated, for
that Current Proceeding only, by increasing the Initial Return by a percentage
at least equal to the increase, expressed as a percentage, in the United States
Average Consumer Price Index for all items, all urban consumers (CPI-U), as
published by the Bureau of Labor Statistics of the
United States U.S.
Department of Labor, since the date on which the Commission determined the
Initial Return. For purposes of this subdivision:
"Current Proceeding" means any proceeding conducted under any provisions of this subsection that require or authorize the Commission to determine a fair combined rate of return on common equity for a utility and that will be concluded after the date on which the Commission determined the Initial Return for such utility.
"Current Return" means the minimum fair combined rate of return on common equity required for any Current Proceeding by the limitation regarding a utility's peer group specified in subdivision 2 a.
"Initial Return" means the fair combined rate of return on common equity determined for such utility by the Commission on the first occasion after July 1, 2009, under any provision of this subsection pursuant to the provisions of subdivision 2 a.
e. In addition to other considerations, in setting the return on equity within the range allowed by this section, the Commission shall strive to maintain costs of retail electric energy that are cost competitive with costs of retail electric energy provided by the other peer group investor-owned electric utilities.
f. The determination of such returns shall be made by the Commission on a stand-alone basis, and specifically without regard to any return on common equity or other matters determined with regard to facilities described in subdivision 6.
g. If the combined rate of return on common equity earned by the generation and distribution services is no more than 50 basis points above or below the return as so determined or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, such return is no more than 70 basis points above or below the return as so determined, such combined return shall not be considered either excessive or insufficient, respectively. However, for any test period commencing after December 31, 2012, for a Phase II Utility, and after December 31, 2013, for a Phase I Utility, if the utility has, during the test period or periods under review, earned below the return as so determined, whether or not such combined return is within 70 basis points of the return as so determined, the utility may petition the Commission for approval of an increase in rates in accordance with the provisions of subdivision 8 a as if it had earned more than 70 basis points below a fair combined rate of return, and such proceeding shall otherwise be conducted in accordance with the provisions of this section. The provisions of this subdivision are subject to the provisions of subdivision 8.
h. Any amount of a utility's earnings directed by the Commission to be credited to customers' bills pursuant to this section shall not be considered for the purpose of determining the utility's earnings in any subsequent review.
3. Each such utility shall make a triennial filing by March 31 of every third year, with such filings commencing for a Phase I Utility in 2020, and such filings commencing for a Phase II Utility in 2021 and terminating thereafter. Such filing shall encompass the three successive 12-month test periods ending December 31 immediately preceding the year in which such proceeding is conducted, except that the filing for a Phase II Utility in 2021 shall encompass the four successive 12-month test periods ending December 31, 2020. After 2021, each Phase II Utility shall make a biennial filing by March 31 of every second year, except that the 2023 filing for a Phase II Utility shall be made on or after July 1, 2023. All biennial filings shall encompass the two successive 12-month test periods ending December 31 immediately preceding the year in which such review proceeding is conducted. All such filings shall consist of the schedules contained in the Commission's rules governing utility rate increase applications, and in every such case the filing for each year shall be identified separately and shall be segregated from any other year encompassed by the filing. In a filing under this subdivision that does not result in an overall rate change, a utility may propose an adjustment to one or more tariffs that are revenue neutral to the utility.
If the Commission determines that rates should be revised or credits be applied to customers' bills pursuant to subdivision 8 or 10, any rate adjustment clauses previously implemented related to facilities utilizing simple-cycle combustion turbines described in subdivision 6, shall be combined with the utility's costs, revenues, and investments until the amounts that are the subject of such rate adjustment clauses are fully recovered. The Commission shall combine such clauses with the utility's costs, revenues, and investments only after it makes its initial determination with regard to necessary rate revisions or credits to customers' bills, and the amounts thereof, but after such clauses are combined as specified in this paragraph, they shall thereafter be considered part of the utility's costs, revenues, and investments for the purposes of future review proceedings.
As of July 1, 2023, a Phase II Utility shall select a subset of rate adjustment clauses previously implemented pursuant to subdivision 5 or 6 having a combined annual revenue requirement, as of July 1, 2023, of at least $350 million and combine such rate adjustment clauses with the utility's costs, revenues, and investments for generation and distribution services. After such rate adjustment clauses are combined as specified in this paragraph, such rate adjustment clauses shall be considered part of the utility's costs, revenues, and investments for the purposes of future biennial review proceedings, and the combination of such rate adjustment clauses shall be specifically subject to audit by the Commission in the utility's 2023 biennial review filing. Notwithstanding the provisions of subsection C of §56-581, such combination shall not serve as the basis for an increase in a Phase II Utility's rates for generation and distribution services in its 2023 biennial proceeding.
4. The following costs incurred by the utility shall be deemed reasonable and prudent: (i) costs for transmission services provided to the utility by the regional transmission entity of which the utility is a member, as determined under applicable rates, terms and conditions approved by the Federal Energy Regulatory Commission; (ii) costs charged to the utility that are associated with demand response programs approved by the Federal Energy Regulatory Commission and administered by the regional transmission entity of which the utility is a member; and (iii) costs incurred by the utility to construct, operate, and maintain transmission lines and substations installed in order to provide service to a business park. Upon petition of a utility at any time after the expiration or termination of capped rates, but not more than once in any 12-month period, the Commission shall approve a rate adjustment clause under which such costs, including, without limitation, costs for transmission service; charges for new and existing transmission facilities, including costs incurred by the utility to construct, operate, and maintain transmission lines and substations installed in order to provide service to a business park; administrative charges; and ancillary service charges designed to recover transmission costs, shall be recovered on a timely and current basis from customers. Retail rates to recover these costs shall be designed using the appropriate billing determinants in the retail rate schedules.
5. A utility may at any time, after the expiration or termination of capped rates, but not more than once in any 12-month period, petition the Commission for approval of one or more rate adjustment clauses for the timely and current recovery from customers of the following costs:
a. Incremental costs described in clause (vi) of subsection B of §56-582 incurred between July 1, 2004, and the expiration or termination of capped rates, if such utility is, as of July 1, 2007, deferring such costs consistent with an order of the Commission entered under clause (vi) of subsection B of §56-582. The Commission shall approve such a petition allowing the recovery of such costs that comply with the requirements of clause (vi) of subsection B of §56-582;
b. Projected and actual costs for the utility to design and operate fair and effective peak-shaving programs or pilot programs. The Commission shall approve such a petition if it finds that the program is in the public interest, provided that the Commission shall allow the recovery of such costs as it finds are reasonable;
c. Projected and actual costs for the utility to design, implement, and operate energy efficiency programs or pilot programs. Any such petition shall include a proposed budget for the design, implementation, and operation of the energy efficiency program, including anticipated savings from and spending on each program, and the Commission shall grant a final order on such petitions within eight months of initial filing. The Commission shall only approve such a petition if it finds that the program is in the public interest. If the Commission determines that an energy efficiency program or portfolio of programs is not in the public interest, its final order shall include all work product and analysis conducted by the Commission's staff in relation to that program that has bearing upon the Commission's determination. Such order shall adhere to existing protocols for extraordinarily sensitive information.
Energy efficiency pilot programs are in the public interest provided that the pilot program is (i) of limited scope, cost, and duration and (ii) intended to determine whether a new or substantially revised program would be cost-effective.
Prior to January 1, 2022, the Commission shall award a margin for recovery on operating expenses for energy efficiency programs and pilot programs, which margin shall be equal to the general rate of return on common equity determined as described in subdivision 2. Beginning January 1, 2022, and thereafter, if the Commission determines that the utility meets in any year the annual energy efficiency standards set forth in §56-596.2, in the following year, the Commission shall award a margin on energy efficiency program operating expenses in that year, to be recovered through a rate adjustment clause, which margin shall be equal to the general rate of return on common equity determined as described in subdivision 2. If the Commission does not approve energy efficiency programs that, in the aggregate, can achieve the annual energy efficiency standards, the Commission shall award a margin on energy efficiency operating expenses in that year for any programs the Commission has approved, to be recovered through a rate adjustment clause under this subdivision, which margin shall equal the general rate of return on common equity determined as described in subdivision 2. Any margin awarded pursuant to this subdivision shall be applied as part of the utility's next rate adjustment clause true-up proceeding. The Commission shall also award an additional 20 basis points for each additional incremental 0.1 percent in annual savings in any year achieved by the utility's energy efficiency programs approved by the Commission pursuant to this subdivision, beyond the annual requirements set forth in §56-596.2, provided that the total performance incentive awarded in any year shall not exceed 10 percent of that utility's total energy efficiency program spending in that same year.
The Commission shall annually monitor and report to the General Assembly the performance of all programs approved pursuant to this subdivision, including each utility's compliance with the total annual savings required by §56-596.2, as well as the annual and lifecycle net and gross energy and capacity savings, related emissions reductions, and other quantifiable benefits of each program; total customer bill savings that the programs produce; utility spending on each program, including any associated administrative costs; and each utility's avoided costs and cost-effectiveness results.
Notwithstanding any other provision of law, unless the Commission finds in its discretion and after consideration of all in-state and regional transmission entity resources that there is a threat to the reliability or security of electric service to the utility's customers, the Commission shall not approve construction of any new utility-owned generating facilities that emit carbon dioxide as a by-product of combusting fuel to generate electricity unless the utility has already met the energy savings goals identified in § 56-596.2 and the Commission finds that supply-side resources are more cost-effective than demand-side or energy storage resources.
As used in this subdivision, "large general service customer" means a customer that has a verifiable history of having used more than one megawatt of demand from a single site.
Large general service customers shall be exempt from requirements that they participate in energy efficiency programs if the Commission finds that the large general service customer has, at the customer's own expense, implemented energy efficiency programs that have produced or will produce measured and verified results consistent with industry standards and other regulatory criteria stated in this section. The Commission shall, no later than June 30, 2021, adopt rules or regulations (a) establishing the process for large general service customers to apply for such an exemption, (b) establishing the administrative procedures by which eligible customers will notify the utility, and (c) defining the standard criteria that shall be satisfied by an applicant in order to notify the utility, including means of evaluation measurement and verification and confidentiality requirements. At a minimum, such rules and regulations shall require that each exempted large general service customer certify to the utility and Commission that its implemented energy efficiency programs have delivered measured and verified savings within the prior five years. In adopting such rules or regulations, the Commission shall also specify the timing as to when a utility shall accept and act on such notice, taking into consideration the utility's integrated resource planning process, as well as its administration of energy efficiency programs that are approved for cost recovery by the Commission. Savings from large general service customers shall be accounted for in utility reporting in the standards in §56-596.2.
The notice of nonparticipation by a large general service customer shall be for the duration of the service life of the customer's energy efficiency measures. The Commission may on its own motion initiate steps necessary to verify such nonparticipant's achievement of energy efficiency if the Commission has a body of evidence that the nonparticipant has knowingly misrepresented its energy efficiency achievement.
A utility shall not charge such large general service customer for the costs of installing energy efficiency equipment beyond what is required to provide electric service and meter such service on the customer's premises if the customer provides, at the customer's expense, equivalent energy efficiency equipment. In all relevant proceedings pursuant to this section, the Commission shall take into consideration the goals of economic development, energy efficiency and environmental protection in the Commonwealth;
d. Projected and actual costs of compliance with renewable energy portfolio standard requirements pursuant to §56-585.5 that are not recoverable under subdivision 6. The Commission shall approve such a petition allowing the recovery of such costs incurred as required by §56-585.5, provided that the Commission does not otherwise find such costs were unreasonably or imprudently incurred;
e. Projected and actual costs of projects that the Commission finds to be necessary to mitigate impacts to marine life caused by construction of offshore wind generating facilities, as described in §56-585.1:11, or to comply with state or federal environmental laws or regulations applicable to generation facilities used to serve the utility's native load obligations, including the costs of allowances purchased through a market-based trading program for carbon dioxide emissions. The Commission shall approve such a petition if it finds that such costs are necessary to comply with such environmental laws or regulations;
f. Projected and actual costs, not currently in rates, for the utility to design, implement, and operate programs approved by the Commission that accelerate the vegetation management of distribution rights-of-way. No costs shall be allocated to or recovered from customers that are served within the large general service rate classes for a Phase II Utility or that are served at subtransmission or transmission voltage, or take delivery at a substation served from subtransmission or transmission voltage, for a Phase I Utility; and
g. Projected and actual costs, not currently in rates, for the utility to design, implement, and operate programs approved by the Commission to provide incentives to (i) low-income, elderly, and disabled individuals or (ii) organizations providing residential services to low-income, elderly, and disabled individuals for the installation of, or access to, equipment to generate electric energy derived from sunlight, provided the low-income, elderly, and disabled individuals, or organizations providing residential services to low-income, elderly, and disabled individuals, first participate in incentive programs for the installation of measures that reduce heating or cooling costs.
Any rate adjustment clause approved under subdivision 5 c by the Commission shall remain in effect until the utility exhausts the approved budget for the energy efficiency program. The Commission shall have the authority to determine the duration or amortization period for any other rate adjustment clause approved under this subdivision.
6. To ensure the generation and delivery of a reliable and adequate supply of electricity, to meet the utility's projected native load obligations and to promote economic development, a utility may at any time, after the expiration or termination of capped rates, petition the Commission for approval of a rate adjustment clause for recovery on a timely and current basis from customers of the costs of (i) a coal-fueled generation facility that utilizes Virginia coal and is located in the coalfield region of the Commonwealth as described in §15.2-6002, regardless of whether such facility is located within or without the utility's service territory, (ii) one or more other generation facilities, (iii) one or more major unit modifications of generation facilities, including the costs of any system or equipment upgrade, system or equipment replacement, or other cost reasonably appropriate to extend the combined operating license for or the operating life of one or more generation facilities utilizing nuclear power, (iv) one or more new underground facilities to replace one or more existing overhead distribution facilities of 69 kilovolts or less located within the Commonwealth, (v) one or more pumped hydroelectricity generation and storage facilities that utilize on-site or off-site renewable energy resources as all or a portion of their power source and such facilities and associated resources are located in the coalfield region of the Commonwealth as described in §15.2-6002, regardless of whether such facility is located within or without the utility's service territory, or (vi) one or more electric distribution grid transformation projects; however, subject to the provisions of the following sentence, the utility shall not file a petition under clause (iv) more often than annually and, in such petition, shall not seek any annual incremental increase in the level of investments associated with such a petition that exceeds five percent of such utility's distribution rate base, as such rate base was determined for the most recently ended 12-month test period in the utility's latest review proceeding conducted pursuant to subdivision 3 and concluded by final order of the Commission prior to the date of filing of such petition under clause (iv). In all proceedings regarding petitions filed under clause (iv) or (vi), the level of investments approved for recovery in such proceedings shall be in addition to, and not in lieu of, levels of investments previously approved for recovery in prior proceedings under clause (iv) or (vi), as applicable. As of December 1, 2028, any costs recovered by a utility pursuant to clause (iv) shall be limited to any remaining costs associated with conversions of overhead distribution facilities to underground facilities that have been previously approved or are pending approval by the Commission through a petition by the utility under this subdivision. Such a petition concerning facilities described in clause (ii) that utilize nuclear power, facilities described in clause (ii) that are coal-fueled and will be built by a Phase I Utility, or facilities described in clause (i) may also be filed before the expiration or termination of capped rates. A utility that constructs or makes modifications to any such facility, or purchases any facility consisting of at least one megawatt of generating capacity using energy derived from sunlight and located in the Commonwealth and that utilizes goods or services sourced, in whole or in part, from one or more Virginia businesses, shall have the right to recover the costs of the facility, as accrued against income, through its rates, including projected construction work in progress, and any associated allowance for funds used during construction, planning, development and construction or acquisition costs, life-cycle costs, costs related to assessing the feasibility of potential sites for new underground facilities, and costs of infrastructure associated therewith, plus, as an incentive to undertake such projects, an enhanced rate of return on common equity calculated as specified below; however, in determining the amounts recoverable under a rate adjustment clause for new underground facilities, the Commission shall not consider, or increase or reduce such amounts recoverable because of (a) the operation and maintenance costs attributable to either the overhead distribution facilities being replaced or the new underground facilities or (b) any other costs attributable to the overhead distribution facilities being replaced. Notwithstanding the preceding sentence, the costs described in clauses (a) and (b) thereof shall remain eligible for recovery from customers through the utility's base rates for distribution service. A utility filing a petition for approval to construct or purchase a facility consisting of at least one megawatt of generating capacity using energy derived from sunlight and located in the Commonwealth and that utilizes goods or services sourced, in whole or in part, from one or more Virginia businesses may propose a rate adjustment clause based on a market index in lieu of a cost of service model for such facility. A utility seeking approval to construct or purchase a generating facility that emits carbon dioxide shall demonstrate that it has already met the energy savings goals identified in §56-596.2 and that the identified need cannot be met more affordably through the deployment or utilization of demand-side resources or energy storage resources and that it has considered and weighed alternative options, including third-party market alternatives, in its selection process.
The costs of the facility, other than return on projected construction work in progress and allowance for funds used during construction, shall not be recovered prior to the date a facility constructed by the utility and described in clause (i), (ii), (iii), or (v) begins commercial operation, the date the utility becomes the owner of a purchased generation facility consisting of at least one megawatt of generating capacity using energy derived from sunlight and located in the Commonwealth and that utilizes goods or services sourced, in whole or in part, from one or more Virginia businesses, or the date new underground facilities are classified by the utility as plant in service. In any application to construct a new generating facility, the utility shall include, and the Commission shall consider, the social cost of carbon, as determined by the Commission, as a benefit or cost, whichever is appropriate. The Commission shall ensure that the development of new, or expansion of existing, energy resources or facilities does not have a disproportionate adverse impact on historically economically disadvantaged communities. The Commission may adopt any rules it deems necessary to determine the social cost of carbon and shall use the best available science and technology, including the Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866, published by the Interagency Working Group on Social Cost of Greenhouse Gases from the United States Government in August 2016, as guidance. The Commission shall include a system to adjust the costs established in this section with inflation.
Such enhanced rate of return on common equity shall be applied to allowance for funds used during construction and to construction work in progress during the construction phase of the facility and shall thereafter be applied to the entire facility during the first portion of the service life of the facility. The first portion of the service life shall be as specified in the table below; however, the Commission shall determine the duration of the first portion of the service life of any facility, within the range specified in the table below, which determination shall be consistent with the public interest and shall reflect the Commission's determinations regarding how critical the facility may be in meeting the energy needs of the citizens of the Commonwealth and the risks involved in the development of the facility. After the first portion of the service life of the facility is concluded, the utility's general rate of return shall be applied to such facility for the remainder of its service life. As used herein, the service life of the facility shall be deemed to begin on the date a facility constructed by the utility and described in clause (i), (ii), (iii), or (v) begins commercial operation, the date the utility becomes the owner of a purchased generation facility consisting of at least one megawatt of generating capacity using energy derived from sunlight and located in the Commonwealth and that utilizes goods or services sourced, in whole or in part, from one or more Virginia businesses, or the date new underground facilities or new electric distribution grid transformation projects are classified by the utility as plant in service, and such service life shall be deemed equal in years to the life of that facility as used to calculate the utility's depreciation expense. Such enhanced rate of return on common equity shall be calculated by adding the basis points specified in the table below to the utility's general rate of return, and such enhanced rate of return shall apply only to the facility that is the subject of such rate adjustment clause. Allowance for funds used during construction shall be calculated for any such facility utilizing the utility's actual capital structure and overall cost of capital, including an enhanced rate of return on common equity as determined pursuant to this subdivision, until such construction work in progress is included in rates. The construction of any facility described in clause (i) or (v) is in the public interest, and in determining whether to approve such facility, the Commission shall liberally construe the provisions of this title. The construction or purchase by a utility of one or more generation facilities with at least one megawatt of generating capacity, and with an aggregate rated capacity that does not exceed 16,100 megawatts, including rooftop solar installations with a capacity of not less than 50 kilowatts, and with an aggregate capacity of 100 megawatts, that use energy derived from sunlight or from onshore wind and are located in the Commonwealth or off the Commonwealth's Atlantic shoreline, regardless of whether any of such facilities are located within or without the utility's service territory, is in the public interest, and in determining whether to approve such facility, the Commission shall liberally construe the provisions of this title. A utility may enter into short-term or long-term power purchase contracts for the power derived from sunlight generated by such generation facility prior to purchasing the generation facility. The replacement of any subset of a utility's existing overhead distribution tap lines that have, in the aggregate, an average of nine or more total unplanned outage events-per-mile over a preceding 10-year period with new underground facilities in order to improve electric service reliability is in the public interest. In determining whether to approve petitions for rate adjustment clauses for such new underground facilities that meet this criteria, and in determining the level of costs to be recovered thereunder, the Commission shall liberally construe the provisions of this title.
The conversion of any such facilities on or after September 1, 2016, is deemed to provide local and system-wide benefits and to be cost beneficial, and the costs associated with such new underground facilities are deemed to be reasonably and prudently incurred and, notwithstanding the provisions of subsection C or D, shall be approved for recovery by the Commission pursuant to this subdivision, provided that the total costs associated with the replacement of any subset of existing overhead distribution tap lines proposed by the utility with new underground facilities, exclusive of financing costs, shall not exceed an average cost per customer of $20,000, with such customers, including those served directly by or downline of the tap lines proposed for conversion, and, further, such total costs shall not exceed an average cost per mile of tap lines converted, exclusive of financing costs, of $750,000. A utility shall, without regard for whether it has petitioned for any rate adjustment clause pursuant to clause (vi), petition the Commission, not more than once annually, for approval of a plan for electric distribution grid transformation projects. Any plan for electric distribution grid transformation projects shall include both measures to facilitate integration of distributed energy resources and measures to enhance physical electric distribution grid reliability and security. In ruling upon such a petition, the Commission shall consider whether the utility's plan for such projects, and the projected costs associated therewith, are reasonable and prudent. Such petition shall be considered on a stand-alone basis without regard to the other costs, revenues, investments, or earnings of the utility; without regard to whether the costs associated with such projects will be recovered through a rate adjustment clause under this subdivision or through the utility's rates for generation and distribution services; and without regard to whether such costs will be the subject of a customer credit offset, as applicable, pursuant to subdivision 8 d. The Commission's final order regarding any such petition for approval of an electric distribution grid transformation plan shall be entered by the Commission not more than six months after the date of filing such petition. The Commission shall likewise enter its final order with respect to any petition by a utility for a certificate to construct and operate a generating facility or facilities utilizing energy derived from sunlight, pursuant to subsection D of §56-580, within six months after the date of filing such petition. The basis points to be added to the utility's general rate of return to calculate the enhanced rate of return on common equity, and the first portion of that facility's service life to which such enhanced rate of return shall be applied, shall vary by type of facility, as specified in the following table:
|
Type of Generation Facility |
Basis Points |
First Portion of Service Life |
|
|
Nuclear-powered |
200 |
Between 12 and 25 years |
|
|
Carbon capture compatible, clean-coal powered |
200 |
Between 10 and 20 years |
|
|
Renewable powered, other than landfill gas powered |
200 |
Between 5 and 15 years |
|
|
Coalbed methane gas powered |
150 |
Between 5 and 15 years |
|
|
Landfill gas powered |
200 |
Between 5 and 15 years |
|
|
Conventional coal or combined-cycle combustion turbine |
100 |
Between 10 and 20 years |
Only those facilities as to which a rate adjustment clause under this subdivision has been previously approved by the Commission, or as to which a petition for approval of such rate adjustment clause was filed with the Commission, on or before January 1, 2013, shall be entitled to the enhanced rate of return on common equity as specified in the above table during the construction phase of the facility and the approved first portion of its service life.
Thirty percent of all costs of such a facility utilizing nuclear power that the utility incurred between July 1, 2007, and December 31, 2013, and all of such costs incurred after December 31, 2013, may be deferred by the utility and recovered through a rate adjustment clause under this subdivision at such time as the Commission provides in an order approving such a rate adjustment clause. The remaining 70 percent of all costs of such a facility that the utility incurred between July 1, 2007, and December 31, 2013, shall not be deferred for recovery through a rate adjustment clause under this subdivision; however, such remaining 70 percent of all costs shall be recovered ratably through existing base rates as determined by the Commission in the test periods under review in the utility's next review filed after July 1, 2014. Thirty percent of all costs of a facility utilizing energy derived from offshore wind that the utility incurred between July 1, 2007, and December 31, 2013, and all of such costs incurred after December 31, 2013, may be deferred by the utility and recovered through a rate adjustment clause under this subdivision at such time as the Commission provides in an order approving such a rate adjustment clause. The remaining 70 percent of all costs of such a facility that the utility incurred between July 1, 2007, and December 31, 2013, shall not be deferred for recovery through a rate adjustment clause under this subdivision; however, such remaining 70 percent of all costs shall be recovered ratably through existing base rates as determined by the Commission in the test periods under review in the utility's next review filed after July 1, 2014.
In connection with planning to meet forecasted demand for electric generation supply and assure the adequate and sufficient reliability of service, consistent with §56-598, planning and development activities for a new utility-owned and utility-operated generating facility or facilities utilizing energy derived from sunlight or from onshore or offshore wind are in the public interest.
Notwithstanding any provision of Chapter 296 of the Acts of Assembly of 2018, construction, purchasing, or leasing activities for a new utility-owned and utility-operated generating facility or facilities utilizing energy derived from sunlight or from onshore wind with an aggregate capacity of 16,100 megawatts, including rooftop solar installations with a capacity of not less than 50 kilowatts, and with an aggregate capacity of 100 megawatts, together with a utility-owned and utility-operated generating facility or facilities utilizing energy derived from offshore wind with an aggregate capacity of not more than 3,000 megawatts, are in the public interest. Additionally, energy storage facilities with an aggregate capacity of 2,700 megawatts are in the public interest. To the extent that a utility elects to recover the costs of any such new generation or energy storage facility or facilities through its rates for generation and distribution services and does not petition and receive approval from the Commission for recovery of such costs through a rate adjustment clause described in clause (ii), the Commission shall, upon the request of the utility in a review proceeding, provide for a customer credit reinvestment offset, as applicable, pursuant to subdivision 8 d with respect to all costs deemed reasonable and prudent by the Commission in a proceeding pursuant to subsection D of §56-580 or in a review proceeding.
Electric distribution grid transformation projects are in the public interest. To the extent that a utility elects to recover the costs of such electric distribution grid transformation projects through its rates for generation and distribution services, and does not petition and receive approval from the Commission for recovery of such costs through a rate adjustment clause described in clause (vi), the Commission shall, upon the request of the utility in a review proceeding, provide for a customer credit reinvestment offset, as applicable, pursuant to subdivision 8 d with respect to all costs deemed reasonable and prudent by the Commission in a proceeding for approval of a plan for electric distribution grid transformation projects pursuant to subdivision 6 or in a review proceeding.
Neither generation facilities described in clause (ii) that utilize simple-cycle combustion turbines nor new underground facilities shall receive an enhanced rate of return on common equity as described herein, but instead shall receive the utility's general rate of return during the construction phase of the facility and, thereafter, for the entire service life of the facility. No rate adjustment clause for new underground facilities shall allocate costs to, or provide for the recovery of costs from, customers that are served within the large power service rate class for a Phase I Utility and the large general service rate classes for a Phase II Utility. New underground facilities are hereby declared to be ordinary extensions or improvements in the usual course of business under the provisions of §56-265.2.
As used in this subdivision, a generation facility is (1)
"coalbed methane gas powered" if the facility is fired at least 50
percent by coalbed methane gas, as such term is defined in §45.2-1600,
produced from wells located in the Commonwealth, and (2) "landfill gas
powered" if the facility is fired by methane or other combustible gas
produced by the anaerobic digestion or decomposition of biodegradable materials
in a solid waste management facility licensed by the Waste
Management Board of Environmental Resources or the Department of
Environmental Quality. A landfill gas powered facility
includes, in addition to the generation facility itself, the equipment used in
collecting, drying, treating, and compressing the landfill gas and in
transmitting the landfill gas from the solid waste management facility where it
is collected to the generation facility where it is combusted.
For purposes of this subdivision, "general rate of return" means the fair combined rate of return on common equity as it is determined by the Commission for such utility pursuant to subdivision 2.
Notwithstanding any other provision of this subdivision, if the Commission finds during the triennial review conducted for a Phase II Utility in 2021 that such utility has not filed applications for all necessary federal and state regulatory approvals to construct one or more nuclear-powered or coal-fueled generation facilities that would add a total capacity of at least 1500 megawatts to the amount of the utility's generating resources as such resources existed on July 1, 2007, or that, if all such approvals have been received, that the utility has not made reasonable and good faith efforts to construct one or more such facilities that will provide such additional total capacity within a reasonable time after obtaining such approvals, then the Commission, if it finds it in the public interest, may reduce on a prospective basis any enhanced rate of return on common equity previously applied to any such facility to no less than the general rate of return for such utility and may apply no less than the utility's general rate of return to any such facility for which the utility seeks approval in the future under this subdivision.
Notwithstanding any other provision of this subdivision, if a Phase II utility obtains approval from the Commission of a rate adjustment clause pursuant to subdivision 6 associated with a test or demonstration project involving a generation facility utilizing energy from offshore wind, and such utility has not, as of July 1, 2023, commenced construction as defined for federal income tax purposes of an offshore wind generation facility or facilities with a minimum aggregate capacity of 250 megawatts, then the Commission, if it finds it in the public interest, may direct that the costs associated with any such rate adjustment clause involving said test or demonstration project shall thereafter no longer be recovered through a rate adjustment clause pursuant to subdivision 6 and shall instead be recovered through the utility's rates for generation and distribution services, with no change in such rates for generation and distribution services as a result of the combination of such costs with the other costs, revenues, and investments included in the utility's rates for generation and distribution services. Any such costs shall remain combined with the utility's other costs, revenues, and investments included in its rates for generation and distribution services until such costs are fully recovered.
7. Any petition filed pursuant to subdivision 4, 5, or 6 shall be considered by the Commission on a stand-alone basis without regard to the other costs, revenues, investments, or earnings of the utility. Any costs incurred by a utility prior to the filing of such petition, or during the consideration thereof by the Commission, that are proposed for recovery in such petition and that are related to subdivision 5 a, or that are related to facilities and projects described in clause (i) of subdivision 6, or that are related to new underground facilities described in clause (iv) of subdivision 6, shall be deferred on the books and records of the utility until the Commission's final order in the matter, or until the implementation of any applicable approved rate adjustment clauses, whichever is later. Except as otherwise provided in subdivision 6, any costs prudently incurred on or after July 1, 2007, by a utility prior to the filing of such petition, or during the consideration thereof by the Commission, that are proposed for recovery in such petition and that are related to facilities and projects described in clause (ii) or clause (iii) of subdivision 6 that utilize nuclear power, or coal-fueled facilities and projects described in clause (ii) of subdivision 6 if such coal-fueled facilities will be built by a Phase I Utility, shall be deferred on the books and records of the utility until the Commission's final order in the matter, or until the implementation of any applicable approved rate adjustment clauses, whichever is later. Any costs prudently incurred after the expiration or termination of capped rates related to other matters described in subdivision 4, 5, or 6 shall be deferred beginning only upon the expiration or termination of capped rates, provided, however, that no provision of this act shall affect the rights of any parties with respect to the rulings of the Federal Energy Regulatory Commission in PJM Interconnection LLC and Virginia Electric and Power Company, 109 F.E.R.C. P 61,012 (2004). A utility shall establish a regulatory asset for regulatory accounting and ratemaking purposes under which it shall defer its operation and maintenance costs incurred in connection with (i) the refueling of any nuclear-powered generating plant and (ii) other work at such plant normally performed during a refueling outage. The utility shall amortize such deferred costs over the refueling cycle, but in no case more than 18 months, beginning with the month in which such plant resumes operation after such refueling. The refueling cycle shall be the applicable period of time between planned refueling outages for such plant. As of January 1, 2014, such amortized costs are a component of base rates, recoverable in base rates only ratably over the refueling cycle rather than when such outages occur, and are the only nuclear refueling costs recoverable in base rates. This provision shall apply to any nuclear-powered generating plant refueling outage commencing after December 31, 2013, and the Commission shall treat the deferred and amortized costs of such regulatory asset as part of the utility's costs for the purpose of proceedings conducted (a) with respect to filings under subdivision 3 made on and after July 1, 2014, and (b) pursuant to §56-245 or the Commission's rules governing utility rate increase applications as provided in subsection B. This provision shall not be deemed to change or reset base rates.
The Commission's final order regarding any petition filed pursuant to subdivision 4, 5, or 6 shall be entered not more than three months, eight months, and nine months, respectively, after the date of filing of such petition. If such petition is approved, the order shall direct that the applicable rate adjustment clause be applied to customers' bills not more than 60 days after the date of the order, or upon the expiration or termination of capped rates, whichever is later. At any time, the Commission may, in its discretion, for a Phase I Utility, upon petition by such a utility or upon its own initiated proceeding, direct the consolidation of any one or more subsets of rate adjustment clauses previously implemented pursuant to subdivision 5 or 6 in the interest of judicial economy, customer transparency, or other factors the Commission determines to be appropriate. Any subset of rate adjustment clauses so consolidated shall continue to be considered by the Commission without regard to the other costs, revenues, investments, or earnings of the utility and remain as a cost recovery mechanism independent from the utility's rates for generation and distribution services pursuant to §56-585.8 and subdivisions 5 and 6, but will be combined as a single rate adjustment clause for cost recovery and review purposes. Any rate adjustment clause or subset of rate adjustment clauses so consolidated shall be named in a manner, as determined by the Commission, that reasonably informs customers as to the nature of the costs recovered by the consolidated rate adjustment clause. At any time, the Commission may, in its discretion, for a Phase II Utility, upon petition by such a utility or upon its own initiated proceeding, direct the consolidation of any one or more subsets of rate adjustment clauses previously implemented pursuant to subdivision 5 or 6 in the interest of judicial economy, customer transparency, or other factors the Commission determines to be appropriate. Any subset of rate adjustment clauses so consolidated shall continue to be considered by the Commission without regard to the other costs, revenues, investments, or earnings of the utility and remain as a cost recovery mechanism independent from the utility's rates for generation and distribution services pursuant to this subdivision and subdivisions 5 and 6, but will be combined as a single rate adjustment clause for cost recovery and review purposes. Any rate adjustment clause or subset of rate adjustment clauses so consolidated shall be named in a manner, as determined by the Commission, that reasonably informs customers as to the nature of the costs recovered by the consolidated rate adjustment clause.
8. For a Phase I Utility in any triennial review proceeding filed on or before June 30, 2023 or for a Phase II Utility in any biennial review proceeding, for the purposes of reviewing earnings on the utility's rates for generation and distribution services, the following utility generation and distribution costs not proposed for recovery under any other subdivision of this subsection, as recorded per books by the utility for financial reporting purposes and accrued against income, shall be attributed to the test periods under review and deemed fully recovered in the period recorded: costs associated with asset impairments related to early retirement determinations made by the utility for utility generation facilities fueled by coal, natural gas, or oil or for automated meter reading electric distribution service meters; costs associated with projects necessary to comply with state or federal environmental laws, regulations, or judicial or administrative orders relating to coal combustion by-product management that the utility does not petition to recover through a rate adjustment clause pursuant to subdivision 5 e; costs associated with severe weather events; and costs associated with natural disasters. Such costs shall be deemed to have been recovered from customers through rates for generation and distribution services in effect during the test periods under review unless such costs, individually or in the aggregate, together with the utility's other costs, revenues, and investments to be recovered through rates for generation and distribution services, result in the utility's earned return on its generation and distribution services for the combined test periods under review to fall more than 50 basis points below the fair combined rate of return authorized under subdivision 2 for such periods or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, to fall more than 70 basis points below the fair combined rate of return authorized under subdivision 2 for such periods. In such cases, the Commission shall, in such review proceeding, authorize deferred recovery of such costs and allow the utility to amortize and recover such deferred costs over future periods as determined by the Commission. The aggregate amount of such deferred costs shall not exceed an amount that would, together with the utility's other costs, revenues, and investments to be recovered through rates for generation and distribution services, cause the utility's earned return on its generation and distribution services to exceed the fair rate of return authorized under subdivision 2, less 50 basis points, for the combined test periods under review or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, to exceed the fair rate of return authorized under subdivision 2 less 70 basis points. Notwithstanding the prior sentence, the aggregate amount of actual and reasonable costs associated with severe weather events eligible for such deferral shall not exceed an amount that would, together with the utility's other costs, revenues, and investments to be recovered through rates for generation and distribution services, cause the utility's earned return on its generation and distribution services to exceed the fair rate of return authorized for the combined test periods under review. For the purposes of determining any amount of costs that are associated with severe weather events, the Commission shall consider nationally recognized standards such as those published by the Institute of Electrical and Electronics Engineers (IEEE). Nothing in this section shall limit the Commission's authority, pursuant to the provisions of Chapter 10 (§56-232 et seq.), including specifically §56-235.2, following the review of combined test period earnings of the utility in a review, for normalization of nonrecurring test period costs and annualized adjustments for future costs, in determining any appropriate increase or decrease in the utility's rates for generation and distribution services pursuant to subdivision 8 a or 8 c.
If the Commission determines as a result of any triennial review initiated prior to July 1, 2023 that:
a. Revenue reductions related to energy efficiency measures or programs approved and deployed since the utility's previous triennial review have caused the utility, as verified by the Commission, during the test period or periods under review, considered as a whole, to earn more than 50 basis points below a fair combined rate of return on its generation and distribution services or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, more than 70 basis points below a fair combined rate of return on its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, the Commission shall order increases to the utility's rates for generation and distribution services necessary to recover such revenue reductions. If the Commission finds, for reasons other than revenue reductions related to energy efficiency measures, that the utility has, during the test period or periods under review, considered as a whole, earned more than 50 basis points below a fair combined rate of return on its generation and distribution services or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, more than 70 basis points below a fair combined rate of return on its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, the Commission shall order increases to the utility's rates necessary to provide the opportunity to fully recover the costs of providing the utility's services and to earn not less than such fair combined rate of return, using the most recently ended 12-month test period as the basis for determining the amount of the rate increase necessary. However, in the first triennial review proceeding conducted after January 1, 2021, for a Phase II Utility, the Commission may not order a rate increase, and in all triennial reviews of a Phase I or Phase II utility, the Commission may not order such rate increase unless it finds that the resulting rates are necessary to provide the utility with the opportunity to fully recover its costs of providing its services and to earn not less than a fair combined rate of return on both its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, using the most recently ended 12-month test period as the basis for determining the permissibility of any rate increase under the standards of this sentence, and the amount thereof; and provided that, solely in connection with making its determination concerning the necessity for such a rate increase or the amount thereof, the Commission shall, in any triennial review proceeding conducted prior to July 1, 2028, exclude from this most recently ended 12-month test period any remaining investment levels associated with a prior customer credit reinvestment offset pursuant to subdivision d.
b. The utility has, during the test period or test periods under review, considered as a whole, earned more than 50 basis points above a fair combined rate of return on its generation and distribution services or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, more than 70 basis points above a fair combined rate of return on its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, the Commission shall, subject to the provisions of subdivisions 8 d and 9, direct that 60 percent of the amount of such earnings that were more than 50 basis points, or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, that 70 percent of the amount of such earnings that were more than 70 basis points, above such fair combined rate of return for the test period or periods under review, considered as a whole, shall be credited to customers' bills. Any such credits shall be amortized over a period of six to 12 months, as determined at the discretion of the Commission, following the effective date of the Commission's order, and shall be allocated among customer classes such that the relationship between the specific customer class rates of return to the overall target rate of return will have the same relationship as the last approved allocation of revenues used to design base rates; or
c. The utility has, during the test period or test periods under review, considered as a whole, earned more than 50 basis points above a fair combined rate of return on its generation and distribution services or, for any test period commencing after December 31, 2012, for a Phase II Utility and after December 31, 2013, for a Phase I Utility, more than 70 basis points above a fair combined rate of return on its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matter determined with respect to facilities described in subdivision 6, and the combined aggregate level of capital investment that the Commission has approved other than those capital investments that the Commission has approved for recovery pursuant to a rate adjustment clause pursuant to subdivision 6 made by the utility during the test periods under review in that triennial review proceeding in new utility-owned generation facilities utilizing energy derived from sunlight, or from wind, and in electric distribution grid transformation projects, as determined pursuant to subdivision 8 d, does not equal or exceed 100 percent of the earnings that are more than 70 basis points above the utility's fair combined rate of return on its generation and distribution services for the combined test periods under review in that triennial review proceeding, the Commission shall, subject to the provisions of subdivision 10 and in addition to the actions authorized in subdivision b, also order reductions to the utility's rates it finds appropriate. However, in the first triennial review proceeding conducted after January 1, 2021, for a Phase II Utility, any reduction to the utility's rates ordered by the Commission pursuant to this subdivision shall not exceed $50 million in annual revenues, with any reduction allocated to the utility's rates for generation services, and in each triennial review of a Phase I or Phase II Utility, the Commission may not order such rate reduction unless it finds that the resulting rates will provide the utility with the opportunity to fully recover its costs of providing its services and to earn not less than a fair combined rate of return on its generation and distribution services, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, using the most recently ended 12-month test period as the basis for determining the permissibility of any rate reduction under the standards of this sentence, and the amount thereof; and
d. (Expires July 1, 2028) In any review proceeding conducted
after December 31, 2017, upon the request of the utility, the Commission shall
determine, prior to directing that 70 percent of earnings that are more than 70
basis points above the utility's fair combined rate of return on its generation
and distribution services for the test period or periods under review be
credited to customer bills pursuant to subdivision 8 b, the aggregate level of
prior capital investment that the Commission has approved other than those
capital investments that the Commission has approved for recovery pursuant to a
rate adjustment clause pursuant to subdivision 6 made by the utility during the
test period or periods under review in both (i) new utility-owned generation
facilities utilizing energy derived from sunlight, or from onshore or offshore
wind, and (ii) electric distribution grid transformation projects, as
determined by the utility's plant in service and construction work in progress
balances related to such investments as recorded per books by the utility for
financial reporting purposes as of the end of the most recent test period under
review. Any such combined capital investment amounts shall offset any customer
bill credit amounts, on a dollar for dollar dollar-for-dollar basis, up to
the aggregate level of invested or committed capital under clauses (i) and
(ii). The aggregate level of qualifying invested or committed capital under clauses
(i) and (ii) is referred to in this subdivision as the customer credit
reinvestment offset, which offsets the customer bill credit amount that the
utility has invested or will invest in new solar or wind generation facilities
or electric distribution grid transformation projects for the benefit of
customers, in amounts up to 100 percent of earnings that are more than 70 basis
points above the utility's fair rate of return on its generation and
distribution services, and thereby reduce or eliminate otherwise incremental
rate adjustment clause charges and increases to customer bills, which is deemed
to be in the public interest. If 100 percent of the amount of earnings that are
more than 70 basis points above the utility's fair combined rate of return on
its generation and distribution services, as determined in subdivision 2,
exceeds the aggregate level of invested capital in new utility-owned generation
facilities utilizing energy derived from sunlight, or from wind, and electric
distribution grid transformation projects, as provided in clauses (i) and (ii),
during the test period or periods under review, then 70 percent of the amount
of such excess shall be credited to customer bills as provided in subdivision 8
b in connection with the review proceeding. The portion of any costs associated
with new utility-owned generation facilities utilizing energy derived from
sunlight, or from wind, or electric distribution grid transformation projects
that is the subject of any customer credit reinvestment offset pursuant to this
subdivision shall not thereafter be recovered through the utility's rates for
generation and distribution services over the service life of such facilities
and shall not thereafter be included in the utility's costs, revenues, and
investments in future review proceedings conducted pursuant to subdivision 2
and shall not be the subject of a rate adjustment clause petition pursuant to
subdivision 6. The portion of any costs associated with new utility-owned
generation facilities utilizing energy derived from sunlight, or from wind, or
electric distribution grid transformation projects that is not the subject of
any customer credit reinvestment offset pursuant to this subdivision may be
recovered through the utility's rates for generation and distribution services
over the service life of such facilities and shall be included in the utility's
costs, revenues, and investments in future review proceedings conducted
pursuant to subdivision 2 until such costs are fully recovered, and if such
costs are recovered through the utility's rates for generation and distribution
services, they shall not be the subject of a rate adjustment clause petition
pursuant to subdivision 6. Only the portion of such costs of new utility-owned
generation facilities utilizing energy derived from sunlight, or from wind, or
electric distribution grid transformation projects that has not been included
in any customer credit reinvestment offset pursuant to this subdivision, and
not otherwise recovered through the utility's rates for generation and
distribution services, may be the subject of a rate adjustment clause petition
by the utility pursuant to subdivision 6.
e. In any biennial review of a Phase II Utility, the Commission's final order regarding such review shall be entered not more than eight months after the date of filing, and any revisions in rates or credits so ordered shall take effect not more than 60 days after the date of the order. The fair combined rate of return on common equity determined pursuant to subdivision 2 in such review shall apply, for purposes of reviewing the utility's earnings on its rates for generation and distribution services, to the entire two or three, as applicable, successive 12-month test periods ending December 31 immediately preceding the year of the utility's subsequent review filing under subdivision 3 and shall apply to applicable rate adjustment clauses under subdivisions 5 and 6 prospectively from the date the Commission's final order in the review proceeding, utilizing rate adjustment clause true-up protocols as the Commission in its discretion may determine.
9. a. In any biennial review for a Phase II Utility filed on or prior to December 31, 2023, if the Commission determines that the utility has during the test period or test periods under review, considered as a whole, earned more than 70 basis points above a fair combined rate of return on its generation and distribution services previously authorized by the Commission, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, which have not been combined with the utility's costs, revenues, and investments for generation and distribution services, the Commission shall direct that 85 percent of the amount of such earnings that were more than 70 basis points above such fair combined rate of return for the test period or periods under review, considered as a whole, be credited to customers' bills. Any such credits shall be amortized over a period of six to 12 months, as determined at the discretion of the Commission, following the effective date of the Commission's order, and shall be allocated among customer classes such that the relationship between the specific customer class rates of return to the overall target rate of return will have the same relationship as the last approved allocation of revenues used to design base rates.
b. In any biennial review for a Phase II Utility filed on or after January 1, 2024, if the Commission determines that the utility has during the test period or test periods under review, considered as a whole, earned above its fair combined rate of return on its generation and distribution services previously authorized by the Commission, as determined in subdivision 2, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, which have not been combined with the utility's costs, revenues, and investments for generation and distribution services, the Commission shall direct that 85 percent of the amount of such earnings above such fair combined rate of return for the test period or periods under review, considered as a whole, be credited to customers' bills. Further, if the Commission determines that during the test period or test periods under review, considered as a whole, a Phase II Utility earned more than 150 basis points above a fair combined rate of return on its generation and distribution services previously authorized by the Commission, without regard to any return on common equity or other matters determined with respect to facilities described in subdivision 6, which have not been combined with the utility's costs, revenues, and investments for generation and distribution services, the Commission shall direct that all such earnings that were more than 150 basis points above such fair combined rate of return for the test period or periods under review, considered as a whole, be credited to customers' bills. Any such credits shall be amortized over a period of six to 12 months, as determined at the discretion of the Commission, following the effective date of the Commission's order, and shall be allocated among customer classes such that the relationship between the specific customer class rates of return to the overall target rate of return will have the same relationship as the last approved allocation of revenues used to design base rates.
10. If, as a result of a triennial review required under this
subsection and conducted with respect to any test period or periods under
review ending later than December 31, 2010 (or, if the Commission has elected
to stagger its biennial reviews of utilities as provided in subdivision 1,
under review ending later than December 31, 2010, for a Phase I Utility, or
December 31, 2011, for a Phase II Utility), the Commission finds, with respect
to such test period or periods considered as a whole, that (i) any utility has,
during the test period or periods under review, considered as a whole, earned more
than 50 basis points above a fair combined rate of return on its generation and
distribution services or, for any test period commencing after December 31,
2012, for a Phase II Utility and after December 31, 2013, for a Phase I
Utility, more than 70 basis points above a fair combined rate of return on its
generation and distribution services, as determined in subdivision 2, without
regard to any return on common equity or other matters determined with respect
to facilities described in subdivision 6, and (ii) the total aggregate
regulated rates of such utility at the end of the most recently ended 12-month
test period exceeded the annual increases in the United States Average Consumer
Price Index for all items, all urban consumers (CPI-U), as published by the
Bureau of Labor Statistics of the United States U.S. Department of Labor,
compounded annually, when compared to the total aggregate regulated rates of
such utility as determined pursuant to the review conducted for the base
period, the Commission shall, unless it finds that such action is not in the
public interest or that the provisions of subdivisions 8 b and c are more
consistent with the public interest, direct that any or all earnings for such
test period or periods under review, considered as a whole that were more than
50 basis points, or, for any test period commencing after December 31, 2012,
for a Phase II Utility and after December 31, 2013, for a Phase I Utility, more
than 70 basis points, above such fair combined rate of return shall be credited
to customers' bills, in lieu of the provisions of subdivisions 8 b and c,
provided that no credits shall be provided pursuant to this subdivision in
connection with any triennial review unless such bill credits would be payable
pursuant to the provisions of subdivision 8 d, and any credits under this
subdivision shall be calculated net of any customer credit reinvestment offset
amounts under subdivision 8 d. Any such credits shall be amortized and
allocated among customer classes in the manner provided by subdivision 8 b. For
purposes of this subdivision:
"Base period" means (i) the test period ending December 31, 2010 (or, if the Commission has elected to stagger its biennial reviews of utilities as provided in subdivision 1, the test period ending December 31, 2010, for a Phase I Utility, or December 31, 2011, for a Phase II Utility), or (ii) the most recent test period with respect to which credits have been applied to customers' bills under the provisions of this subdivision, whichever is later.
"Total aggregate regulated rates" shall include: (i) fuel tariffs approved pursuant to §56-249.6, except for any increases in fuel tariffs deferred by the Commission for recovery in periods after December 31, 2010, pursuant to the provisions of clause (ii) of subsection C of §56-249.6; (ii) rate adjustment clauses implemented pursuant to subdivision 4 or 5; (iii) revisions to the utility's rates pursuant to subdivision 8 a; (iv) revisions to the utility's rates pursuant to the Commission's rules governing utility rate increase applications, as permitted by subsection B, occurring after July 1, 2009; and (v) base rates in effect as of July 1, 2009.
11. For purposes of this section, the Commission shall regulate the rates, terms and conditions of any utility subject to this section on a stand-alone basis utilizing the actual end-of-test period capital structure and cost of capital of such utility, excluding any debt associated with securitized bonds that are the obligation of non-Virginia jurisdictional customers, unless the Commission finds that the debt to equity ratio of such capital structure is unreasonable for such utility, in which case the Commission may utilize a debt to equity ratio that it finds to be reasonable for such utility in determining any rate adjustment pursuant to subdivisions 8 a and c, and without regard to the cost of capital, capital structure, revenues, expenses or investments of any other entity with which such utility may be affiliated. In particular, and without limitation, the Commission shall determine the federal and state income tax costs for any such utility that is part of a publicly traded, consolidated group as follows: (i) such utility's apportioned state income tax costs shall be calculated according to the applicable statutory rate, as if the utility had not filed a consolidated return with its affiliates, and (ii) such utility's federal income tax costs shall be calculated according to the applicable federal income tax rate and shall exclude any consolidated tax liability or benefit adjustments originating from any taxable income or loss of its affiliates.
B. Nothing in this section shall preclude an investor-owned incumbent electric utility from applying for an increase in rates pursuant to § 56-245 or the Commission's rules governing utility rate increase applications; however, in any such filing, a fair rate of return on common equity shall be determined pursuant to subdivision A 2. Nothing in this section shall preclude such utility's recovery of fuel and purchased power costs as provided in § 56-249.6.
C. Except as otherwise provided in this section, the Commission shall exercise authority over the rates, terms and conditions of investor-owned incumbent electric utilities for the provision of generation, transmission and distribution services to retail customers in the Commonwealth pursuant to the provisions of Chapter 10 (§56-232 et seq.), including specifically §56-235.2.
D. The Commission may determine, during any proceeding authorized or required by this section, the reasonableness or prudence of any cost incurred or projected to be incurred, by a utility in connection with the subject of the proceeding. A determination of the Commission regarding the reasonableness or prudence of any such cost shall be consistent with the Commission's authority to determine the reasonableness or prudence of costs in proceedings pursuant to the provisions of Chapter 10 (§56-232 et seq.). In determining the reasonableness or prudence of a utility providing energy and capacity to its customers from renewable energy resources, the Commission shall consider the extent to which such renewable energy resources, whether utility-owned or by contract, further the objectives of the Commonwealth Clean Energy Policy set forth in §45.2-1706.1, and shall also consider whether the costs of such resources is likely to result in unreasonable increases in rates paid by customers.
E. Notwithstanding any other provision of law, the Commission shall determine the amortization period for recovery of any appropriate costs due to the early retirement of any electric generation facilities owned or operated by any Phase I Utility or Phase II Utility. In making such determination, the Commission shall (i) perform an independent analysis of the remaining undepreciated capital costs; (ii) establish a recovery period that best serves ratepayers; and (iii) allow for the recovery of any carrying costs that the Commission deems appropriate.
F. The Commission shall include in its report required by subsection B of §56-596 any information concerning the reliability impacts of generation unit additions and retirement determinations by a Phase I or Phase II Utility along with the potential impact on the purchase of power from generation assets outside the Virginia jurisdiction used to serve the utility's native load, utilizing information from the respective utility's integrated resource plan or information from the respective utility's plan filed pursuant to subsection D of §56-585.5.
G. The Commission shall promulgate such rules and regulations as may be necessary to implement the provisions of this section.
§56-586.1. Electric energy emergencies.
A. As used in this section, "electric energy emergency" means an unplanned interruption in the generation or transmission of electricity resulting from a hurricane, ice storm, windstorm, earthquake or similar natural phenomena, or from a criminal act affecting such generation or transmission, act of war or act of terrorism, which interruption is (i) of such severity that minimum levels of reliable service cannot be maintained using resources practicably obtainable from the market and (ii) so imminently and substantially threatening to the health, safety or welfare of residents of this Commonwealth that immediate action of state government is necessary to prevent loss of life, protect the public health or safety, and prevent unnecessary or avoidable damage to property.
B. The Governor is authorized, after finding that an electric
energy emergency exists and that appropriate federal and state agencies and
appropriate reliability councils cannot adequately address such emergency, to
declare an electric energy emergency by filing a written declaration with the
Secretary of the Commonwealth. The declaration shall state the counties and
cities or utility service areas of the Commonwealth in which the declaration is
applicable, or its statewide application. A declared electric energy emergency
shall go into immediate effect upon filing and continue in effect for the
period prescribed in the declaration, but not more than
thirty 30
days. At the end of the prescribed period, the Governor may issue another
declaration extending the emergency. The Governor shall terminate such
declaration as soon as the basis for such declaration no longer exists.
C. During a declared electric energy emergency, the Governor
is authorized, in compliance with guidelines of the Department of Emergency
Services promulgated as provided in subsection G, to require any generator or
any municipal electric utility that is capable of generating but (i) is not
generating or (ii) is not generating at its full potential during such declared
electric emergency, to generate, dispatch or sell electricity from a facility that
it operates within the Commonwealth, to the Commonwealth for distribution
within the areas of the Commonwealth designated in the declaration. The
quantity of electricity required to be generated, dispatched, or sold, and the duration of
such requirements, shall be as determined by the Governor to be necessary to
alleviate the electric energy emergency hardship. The Commonwealth shall
compensate an entity required to generate, dispatch, or sell electricity
pursuant to this subsection, and the operator of any transmission facilities
over which the electricity is transmitted, in the manner provided in §56-522,
mutatis mutandis, unless otherwise provided by federal law. The Department of
Environmental Quality, the State Air Pollution
Control Board, the State Water Control Board, and the Virginia
Waste Management Board shall issue any
temporary or emergency permit, order, or variance necessary to authorize any
permit amendments or other changes needed to meet the requirements imposed
under this section and the Governor may petition the President to declare a
regional energy emergency under 42 U.S.C. § 7410
(f) 7410(f)
as necessary to suspend enforcement of any provision of the federal Clean Air
Act, 42 U.S.C. §7401 et seq. Any
increased operation required during such declared emergency shall not be
counted towards the number of hours of operation allowed during the year. No
civil charges or penalties shall be imposed for any violation that occurs as a
result of actions taken that are necessary for the required generation,
dispatch or sale during the declared electric energy emergency. The foregoing
provisions shall apply to all actions the entity takes in connection with such
required generation, dispatch or sale during the period of the declared
emergency.
D. During a declared electric energy emergency, the Governor may use the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the Commonwealth, and of the political subdivisions thereof, to the maximum extent practicable and necessary to meet the electric energy emergency. The officers and personnel of all such departments, offices, and agencies shall cooperate with and extend such services and facilities to the Governor upon request.
E. During a declared electric energy emergency, the Governor
is authorized to request the Secretary of the
United States U.S.
Department of Energy to invoke section § 202(C) of the Federal Power
Act, 16 U.S.C. §824a (1935).
F. The General Assembly is authorized by joint resolution to terminate any declaration of an electric energy emergency. The emergency shall be terminated at the time of filing of the joint resolution with the Secretary of the Commonwealth.
G. The Department of Emergency Services, in consultation with the Commission and the Secretary of Commerce and Trade, shall establish guidelines for the implementation of the Governor's powers pursuant to subsection C that protect the public health and safety and prevent unnecessary or avoidable damage to property with a minimum of economic disruption to generators, transmitters and distributors of electricity. Such guidelines shall:
1. Define various foreseeable levels of electric energy emergencies and specify appropriate measures to be taken for each type of electric energy emergency as necessary to protect the public health or safety or prevent unnecessary or avoidable damage to property;
2. Prescribe appropriate response measures for each level of electric energy emergency; and
3. Equitably distribute the burdens and benefits resulting from the implementation of this section among other members of the affected class of persons within all geographic regions of the Commonwealth.
H. During a declared electric energy emergency, the attorney general may bring an action for injunctive or other appropriate relief in the Circuit Court of the City of Richmond to secure prompt compliance. The court may issue an ex parte temporary order without notice that shall enforce the prohibitions, restrictions or actions that are necessary to secure compliance with the guideline, order or declaration.
I. During a declared electric energy emergency, no person shall intentionally violate any guideline adopted or declaration issued pursuant to this section. Any person who violates this section is guilty of a Class 1 misdemeanor.
§58.1-2289. Disposition of tax revenue generally.
A. Unless otherwise provided in this section, all taxes and fees, including civil penalties, collected by the Commissioner pursuant to this chapter, less a reasonable amount to be allocated for refunds, shall be promptly paid into the state treasury and shall constitute special funds within the Commonwealth Transportation Fund. Any balances remaining in these funds at the end of the year shall be available for use in subsequent years for the purposes set forth in this chapter, and any interest income on such funds shall accrue to these funds.
The Governor is hereby authorized to transfer out of such fund an amount necessary for the inspection of gasoline and motor grease measuring and distributing equipment, and for the inspection and analysis of gasoline for purity.
B. The tax collected on each gallon of aviation fuel sold and delivered or used in this Commonwealth, less refunds, shall be paid into a special fund of the state treasury. Proceeds of this special fund within the Commonwealth Transportation Fund shall be disbursed upon order of the Department of Aviation, on warrants of the Comptroller, to defray the cost of the administration of the laws of this Commonwealth relating to aviation, for the construction, maintenance and improvement of airports and landing fields to which the public now has or which it is proposed shall have access, and for the promotion of aviation in the interest of operators and the public generally.
C. One-half cent of the tax collected on each gallon of fuel on which a refund has been paid for gasoline, gasohol, diesel fuel, blended fuel, or alternative fuel, for fuel consumed in tractors and unlicensed equipment used for agricultural purposes shall be paid into a special fund of the state treasury, known as the Virginia Agricultural Foundation Fund, to be disbursed to make certain refunds and defray the costs of the research and educational phases of the agricultural program, including supplemental salary payments to certain employees at Virginia Polytechnic Institute and State University, the Department of Agriculture and Consumer Services and the Virginia Truck and Ornamentals Research Station, including reasonable expenses of the Virginia Agricultural Council.
D. One and one-half cents of the tax collected on each gallon of fuel used to propel a commercial watercraft upon which a refund has been paid shall be paid to the credit of the Game Protection Fund of the state treasury to be made available to the Board of Wildlife Resources until expended for the purposes provided generally in subsection C of §29.1-701, including acquisition, construction, improvement and maintenance of public boating access areas on the public waters of this Commonwealth and for other activities and purposes of direct benefit and interest to the boating public and for no other purpose. However, one and one-half cents per gallon on fuel used by commercial fishing, oystering, clamming, and crabbing boats shall be paid to the Department of Transportation to be used for the construction, repair, improvement and maintenance of the public docks of this Commonwealth used by said commercial watercraft. Any expenditures for the acquisition, construction, improvement and maintenance of the public docks shall be made according to a plan developed by the Virginia Marine Resources Commission.
From the tax collected pursuant to the provisions of this
chapter from the sales of gasoline used for the propelling of watercraft, after
deduction for lawful refunds, there shall be paid into the state treasury for
use by the Marine Resources Commission, the Virginia Soil and Water
Conservation Board, the State Water Control Board Department of Environmental Quality,
and the Commonwealth Transportation Board to (i) improve the public docks as
specified in this section, (ii) improve commercial and sports fisheries in
Virginia's tidal waters, (iii) make environmental improvements including,
without limitation, fisheries management and habitat enhancement in the Chesapeake
and its tributaries, and (iv) further the purposes set forth in §33.2-1510, a
sum as established by the General Assembly.
E. All remaining revenue shall be deposited into the Commonwealth Transportation Fund established pursuant to §33.2-1524.
§58.1-3660. Certified pollution control equipment and facilities.
A. Certified pollution control equipment and facilities, as defined herein, are hereby declared to be a separate class of property and shall constitute a classification for local taxation separate from other such classification of real or personal property and such property. Certified pollution control equipment and facilities shall be exempt from state and local taxation pursuant to Article X, §6 (d) of the Constitution of Virginia.
B. As used in this section:
"Certified pollution control equipment and facilities" means any property, including real or personal property, equipment, facilities, or devices, used primarily for the purpose of abating or preventing pollution of the atmosphere or waters of the Commonwealth and which the state certifying authority or subdivision certifying authority having jurisdiction with respect to such property has certified to the Department of Taxation as having been constructed, reconstructed, erected, or acquired in conformity with the state program or requirements for abatement or control of water or atmospheric pollution or contamination, except that in the case of equipment, facilities, devices, or other property intended for use by any political subdivision in conjunction with the operation of its water, wastewater, stormwater, or solid waste management facilities or systems, including property that may be financed pursuant to Chapter 22 (§62.1-224 et seq.) of Title 62.1, the state certifying authority or subdivision certifying authority having jurisdiction with respect to such property shall, upon the request of the political subdivision, make such certification prospectively for property to be constructed, reconstructed, erected, or acquired for such purposes. Such property shall include, but is not limited to, any equipment used to grind, chip, or mulch trees, tree stumps, underbrush, and other vegetative cover for reuse as mulch, compost, landfill gas, synthetic or natural gas recovered from waste or other fuel, and equipment used in collecting, processing, and distributing, or generating electricity from, landfill gas or synthetic or natural gas recovered from waste, whether or not such property has been certified to the Department of Taxation by a state certifying authority or subdivision certifying authority. Such property shall include solar energy equipment, facilities, or devices owned or operated by a business that collect, generate, transfer, or store thermal or electric energy whether or not such property has been certified to the Department of Taxation by a state certifying authority or subdivision certifying authority. Such property shall also include energy storage systems, whether or not such property has been certified to the Department of Taxation by a state certifying authority or subdivision certifying authority. All such property as described in this definition shall not include the land on which such equipment or facilities are located.
"Energy storage system" means equipment, facilities, or devices that are capable of absorbing energy, storing it for a period of time, and redelivering that energy after it has been stored.
"State certifying authority" means the State Water Control Board Department of Environmental Quality
or the Virginia Department of Health, for water pollution; the State Air Pollution Control Board Department of Environmental Quality,
for air pollution; the Department of Energy, for solar energy projects, energy
storage systems, and for coal, oil, and gas production, including gas, natural
gas, and coalbed methane gas; and the Virginia Waste Management Board Department of Environmental Quality,
for waste disposal facilities, natural gas recovered from waste facilities, and
landfill gas production facilities, and shall include any interstate agency
authorized to act in place of a certifying authority of the Commonwealth.
"Subdivision certifying authority" means the body of a political subdivision responsible for administering the political subdivision's water, wastewater, stormwater, or solid waste management facilities or systems. A subdivision certifying authority may only certify property pursuant to this section if the property being certified is equipment, facilities, devices, or other property intended for use by the political subdivision in conjunction with the operation of its water, wastewater, stormwater, or solid waste management facilities or systems. If property is certified by a subdivision certifying authority, it shall not be required to be certified by a state certifying authority.
C. For solar photovoltaic (electric energy) systems, this exemption applies only to (i) projects equaling 20 megawatts or less, as measured in alternating current (AC) generation capacity, for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization on or before December 31, 2018; (ii) projects equaling 20 megawatts or less, as measured in alternating current (AC) generation capacity, that serve any of the public institutions of higher education listed in §23.1-100 or any private college as defined in §23.1-105; (iii) 80 percent of the assessed value of projects for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization (a) between January 1, 2015, and June 30, 2018, for projects greater than 20 megawatts or (b) on or after July 1, 2018, for projects greater than 20 megawatts and less than 150 megawatts, as measured in alternating current (AC) generation capacity, and that are first in service on or after January 1, 2017; (iv) projects equaling five megawatts or less, as measured in alternating current (AC) generation capacity, for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization on or after January 1, 2019; and (v) 80 percent of the assessed value of all other projects equaling more than five megawatts and less than 150 megawatts, as measured in alternating current (AC) generation capacity for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization on or after January 1, 2019.
D. The exemption for solar photovoltaic (electric energy) projects greater than five megawatts, as measured in alternating current (AC) generation capacity, shall not apply to any such project unless an application has been filed with the locality for the project before July 1, 2030, regardless of whether a locality assesses a revenue share on such project pursuant to the provisions of §58.1-2636. If a locality adopts an energy revenue share ordinance under §58.1-2636, the exemption for solar photovoltaic (electric energy) projects greater than five megawatts, as measured in alternating current (AC) generation capacity, shall be 100 percent of the assessed value. If a locality does not adopt an energy revenue share ordinance under §58.1-2636, the exemption for solar photovoltaic (electric energy) projects greater than five megawatts, as measured in alternating current (AC) generation capacity, for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization, shall be 80 percent of the assessed value when an application has been filed with the locality prior to July 1, 2030. For purposes of this subsection, "application has been filed with the locality" means an applicant has filed an application for a zoning confirmation from the locality for a by-right use or an application for land use approval under the locality's zoning ordinance to include an application for a conditional use permit, special use permit, special exception, or other application as set out in the locality's zoning ordinance.
E. For pollution control equipment and facilities certified by the Virginia Department of Health, this exemption applies only to onsite sewage systems that serve 10 or more households, use nitrogen-reducing processes and technology, and are constructed, wholly or partially, with public funds.
F. Notwithstanding any provision to the contrary, for any solar photovoltaic project described in clauses (iii) and (v) of subsection C for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization on or after January 1, 2019, the amount of the exemption shall be as follows: 80 percent of the assessed value in the first five years in service after commencement of commercial operation, 70 percent of the assessed value in the second five years in service, and 60 percent of the assessed value for all remaining years in service.
G. Notwithstanding any provision to the contrary, the exemption for energy storage systems provided under this section (i) shall apply only to projects greater than five megawatts and less than 150 megawatts, as measured in alternating current (AC) storage capacity, and (ii) shall be in the following amounts: 80 percent of the assessed value in the first five years of service after commencement of commercial operation, 70 percent of the assessed value in the second five years in service, and 60 percent of the assessed value for all remaining years in service.
H. The exemption for energy storage systems greater than five megawatts, as measured in alternating current (AC) storage capacity, shall not apply to any such project unless an application has been filed with the locality for the project before July 1, 2030, regardless of whether a locality assesses a revenue share on such project pursuant to the provisions of § 58.1-2636. If a locality adopts an energy revenue share ordinance under § 58.1-2636, the exemption for energy storage systems greater than five megawatts, as measured in alternating current (AC) storage capacity, shall be 100 percent of the assessed value. If a locality does not adopt an energy revenue share ordinance under §58.1-2636, the exemption for energy storage systems greater than five megawatts, as measured in alternating current (AC) storage capacity, shall be as set out in subsection G when an application has been filed with the locality prior to July 1, 2030. For the purposes of this subsection, "application has been filed with the locality" means an applicant has filed an application for a zoning confirmation from the locality for a by-right use or an application for land use approval under the locality's zoning ordinance to include an application for a conditional use permit, special use permit, special exception, or other application as set out in the locality's zoning ordinance.
§58.1-3664. Environmental restoration sites.
Environmental restoration sites, as defined herein, are hereby declared to be a separate class of property and shall constitute a classification for local taxation separate from other such classification of real property. The governing body of any county, city or town may, by ordinance, exempt or partially exempt such property from local taxation annually for a period not in excess of five years.
"Environmental restoration site" means real estate
which contains or did contain environmental contamination from the release of
hazardous substances, hazardous wastes, solid waste or petroleum, the
restoration of which would abate or prevent pollution to the atmosphere or waters
of the Commonwealth and which (i) is subject to voluntary remediation pursuant
to §10.1-1232 and (ii) receives a certificate of continued eligibility from
the Virginia Waste Management
Board of Environmental Resources
during each year for
which it qualifies for the tax treatment described in this section.
§62.1-44.3. (Effective until July 1, 2024) Definitions.
Unless a different
meaning is required by the context, the following terms as As used in this chapter shall have the meanings hereinafter respectively
ascribed to them, unless the context
requires a different meaning:
"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural uses, electric power generation, commercial, and industrial uses.
"Board" means the State Water
Control Board of Environmental Resources.
However, when used outside the context of the promulgation of regulations,
including regulations to establish general permits, pursuant to this chapter,
"Board" means the Department of Environmental Quality.
"Certificate" means any certificate issued by the Department.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Establishment" means any industrial establishment, mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker or coal-processing operations, quarry, oil refinery, boat, vessel, and every other industry or plant or works the operation of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any state waters.
"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil or rock.
"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade, or business or from the development of any natural resources.
"The law" or "this law" means the law contained in this chapter as now existing or hereafter amended.
"Member" means a member of the Board.
"Normal agricultural activities" means those activities defined as an agricultural operation in §3.2-300 and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated pursuant thereto.
"Normal silvicultural activities" means any silvicultural activity as defined in §10.1-1181.1 and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated pursuant thereto.
"Other wastes" means decayed wood, sawdust, shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances except industrial wastes and sewage which may cause pollution in any state waters.
"Owner" means the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of §62.1-44.5.
"Person" means an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.
"Policies" means policies established under subdivisions (3a) and (3b) of §62.1-44.15.
"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the Board, are "pollution" for the terms and purposes of this chapter.
"Pretreatment requirements" means any requirements arising under the Board's pretreatment regulations including the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the owner of a publicly owned treatment works; or any reporting requirements imposed by the owner of a publicly owned treatment works or by the regulations of the Board.
"Pretreatment standards" means any standards of performance or other requirements imposed by regulation of the Board upon an industrial user of a publicly owned treatment works.
"Reclaimed water" means water resulting from the treatment of domestic, municipal, or industrial wastewater that is suitable for a direct beneficial or controlled use that would not otherwise occur. Specifically excluded from this definition is "gray water."
"Reclamation" means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a direct beneficial or controlled use that would not otherwise occur.
"Regulation" means a regulation issued under subdivision (10) of
§62.1-44.15 (10).
"Reuse" means the use of reclaimed water for a direct beneficial use or a controlled use that is in accordance with the requirements of the Board.
"Rule" means a rule adopted by the Board to regulate
the procedure of the Board pursuant to subdivision (7) of
§62.1-44.15 (7).
"Ruling" means a ruling issued under subdivision (9) of §
62.1-44.15 (9).
"Sewage" means the water-carried human wastes from residences, buildings, industrial establishments or other places together with such industrial wastes and underground, surface, storm, or other water as may be present.
"Sewage treatment works" or "treatment works" means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power, and other equipment, and appurtenances, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for the ultimate disposal of residues or effluent resulting from such treatment. These terms shall not include onsite sewage systems or alternative discharging sewage systems.
"Sewerage system" means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage or industrial wastes or other wastes to a point of ultimate disposal.
"Special order" means a special order issued under subdivisions (8a), (8b), and (8c) of §62.1-44.15.
"Standards" means standards established under subdivisions (3a) and (3b) of §62.1-44.15.
"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.
"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
§62.1-44.3. (Effective July 1, 2024) Definitions.
Unless a different
meaning is required by the context, the following terms as As used in this chapter shall have the meanings hereinafter respectively
ascribed to them, unless the context
requires a different meaning:
"Beneficial use" means both instream and offstream uses. Instream beneficial uses include, but are not limited to, the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, cultural and aesthetic values is an instream beneficial use of Virginia's waters. Offstream beneficial uses include, but are not limited to, domestic (including public water supply), agricultural uses, electric power generation, commercial, and industrial uses.
"Board" means the State Water
Control Board of Environmental Resources.
However, when used outside the context of the promulgation of regulations,
including regulations to establish general permits, pursuant to this chapter,
"Board" means the Department of Environmental Quality.
"Certificate" means any certificate or permit issued by the Department.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Executive Director" means the Executive Director of the Board of Environmental Resources.
"Establishment" means any industrial establishment, mill, factory, tannery, paper or pulp mill, mine, coal mine, colliery, breaker or coal-processing operations, quarry, oil refinery, boat, vessel, and every other industry or plant or works the operation of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any state waters.
"Excavate" or "excavation" means ditching, dredging, or mechanized removal of earth, soil or rock.
"Industrial wastes" means liquid or other wastes resulting from any process of industry, manufacture, trade, or business or from the development of any natural resources.
"Land-disturbance approval" means an approval allowing a land-disturbing activity to commence issued by (i) a Virginia Erosion and Stormwater Management Program authority after the requirements of § 62.1-44.15:34 have been met or (ii) a Virginia Erosion and Sediment Control Program authority after the requirements of §62.1-44.15:55 have been met.
"The law" or "this law" means the law contained in this chapter as now existing or hereafter amended.
"Member" means a member of the Board.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that is:
1. Owned or operated by a federal entity, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including a special district under state law such as a sewer district, flood control district, drainage district or similar entity, or a designated and approved management agency under §208 of the federal Clean Water Act (33 U.S.C. §1251 et seq.) that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. Not a combined sewer; and
4. Not part of a publicly owned treatment works.
"Normal agricultural activities" means those activities defined as an agricultural operation in §3.2-300 and any activity that is conducted as part of or in furtherance of such agricultural operation but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated pursuant thereto.
"Normal silvicultural activities" means any silvicultural activity as defined in §10.1-1181.1 and any activity that is conducted as part of or in furtherance of such silvicultural activity but shall not include any activity for which a permit would have been required as of January 1, 1997, under 33 U.S.C. §1344 or any regulations promulgated pursuant thereto.
"Other wastes" means decayed wood, sawdust, shavings, bark, lime, garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances except industrial wastes and sewage which may cause pollution in any state waters.
"Owner" means the Commonwealth or any of its political subdivisions, including but not limited to sanitation district commissions and authorities and any public or private institution, corporation, association, firm, or company organized or existing under the laws of this or any other state or country, or any officer or agency of the United States, or any person or group of persons acting individually or as a group that owns, operates, charters, rents, or otherwise exercises control over or is responsible for any actual or potential discharge of sewage, industrial wastes, or other wastes to state waters, or any facility or operation that has the capability to alter the physical, chemical, or biological properties of state waters in contravention of §62.1-44.5.
"Person" means an individual, corporation, partnership, association, governmental body, municipal corporation, or any other legal entity.
"Policies" means policies established under subdivisions (3a) and (3b) of §62.1-44.15.
"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the Board, are "pollution" for the terms and purposes of this chapter.
"Pretreatment requirements" means any requirements arising under the Board's pretreatment regulations including the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the owner of a publicly owned treatment works; or any reporting requirements imposed by the owner of a publicly owned treatment works or by the regulations of the Board.
"Pretreatment standards" means any standards of performance or other requirements imposed by regulation of the Board upon an industrial user of a publicly owned treatment works.
"Reclaimed water" means water resulting from the treatment of domestic, municipal, or industrial wastewater that is suitable for a direct beneficial or controlled use that would not otherwise occur. Specifically excluded from this definition is "gray water."
"Reclamation" means the treatment of domestic, municipal, or industrial wastewater or sewage to produce reclaimed water for a direct beneficial or controlled use that would not otherwise occur.
"Regulation" means a regulation issued under subdivision (10) of §62.1-44.15.
"Reuse" means the use of reclaimed water for a direct beneficial use or a controlled use that is in accordance with the requirements of the Board.
"Rule" means a rule adopted by the Board to regulate the procedure of the Board pursuant to subdivision (7) of §62.1-44.15.
"Ruling" means a ruling issued under subdivision (9) of §62.1-44.15.
"Sewage" means the water-carried human wastes from residences, buildings, industrial establishments or other places together with such industrial wastes and underground, surface, storm, or other water as may be present.
"Sewage treatment works" or "treatment works" means any device or system used in the storage, treatment, disposal, or reclamation of sewage or combinations of sewage and industrial wastes, including but not limited to pumping, power, and other equipment, and appurtenances, and any works, including land, that are or will be (i) an integral part of the treatment process or (ii) used for the ultimate disposal of residues or effluent resulting from such treatment. These terms shall not include onsite sewage systems or alternative discharging sewage systems.
"Sewerage system" means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage or industrial wastes or other wastes to a point of ultimate disposal.
"Special order" means a special order issued under subdivisions (8a), (8b), and (8c) of §62.1-44.15.
"Standards" means standards established under subdivisions (3a) and (3b) of §62.1-44.15.
"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.
"Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
§62.1-44.14. Executive Director; employment of personnel; supervision; budget preparation.
The Board shall elect its chairman, and
the Executive Director shall be appointed as set forth in §2.2-106. The
Executive Director shall serve as executive officer and devote his whole time
to the performance of his duties, and he shall have such administrative powers
as are conferred upon him by the Board; and, further, the Board
may delegate to its the Executive Director any of
the powers and duties invested in it by this chapter except the adoption and
promulgation of standards, rules,
and regulations;
and the revocation of certificates. The Executive Director is authorized to
issue, modify, or
revoke orders in cases of emergency as described in §§ subdivision (8b) of §
62.1-44.15 (8b) and §
62.1-44.34:20 of this chapter.
The Executive Director is further authorized to employ such consultants and
full-time technical and clerical workers as are necessary and within the available
funds to carry out the purposes of this chapter.
It shall be the duty of the Executive Director to exercise
general supervision and control over the quality and management of all state
waters and to administer and enforce this chapter,
and all certificates, standards, policies, rules, regulations, rulings, and special orders
promulgated by the Board. The Executive Director shall prepare, approve, and
submit all requests for appropriations and be responsible for all expenditures
pursuant to appropriations. The Executive Director shall be vested with all the
authority of the Board when it is not in session, except for the Board's
authority to issue special orders pursuant to subdivisions (8a) and (8b) of §
62.1-44.15 and subject to such regulations as may be prescribed by the Board.
In no event shall the Executive Director have the authority to adopt or
promulgate any regulation.
§62.1-44.15. (Effective until July 1, 2024) Powers and duties; civil penalties.
It shall be the duty of the Board and it shall have the authority:
(1) [Repealed.]
(2) To study and investigate all problems concerned with the quality of state waters and to make reports and recommendations.
(2a) To study and investigate methods, procedures, devices, appliances, and technologies that could assist in water conservation or water consumption reduction.
(2b) To coordinate its efforts toward water conservation with other persons or groups, within or without the Commonwealth.
(2c) To make reports concerning, and formulate recommendations based upon, any such water conservation studies to ensure that present and future water needs of the citizens of the Commonwealth are met.
(3a) To establish such standards of quality and policies for any state waters consistent with the general policy set forth in this chapter, and to modify, amend or cancel any such standards or policies established and to take all appropriate steps to prevent quality alteration contrary to the public interest or to standards or policies thus established, except that a description of provisions of any proposed standard or policy adopted by regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the standard or policy are most properly referable. The Board shall, from time to time, but at least once every three years, hold public hearings pursuant to §2.2-4007.01 but, upon the request of an affected person or upon its own motion, hold hearings pursuant to §2.2-4009, for the purpose of reviewing the standards of quality, and, as appropriate, adopting, modifying, or canceling such standards. Whenever the Board considers the adoption, modification, amendment or cancellation of any standard, it shall give due consideration to, among other factors, the economic and social costs and benefits which can reasonably be expected to obtain as a consequence of the standards as adopted, modified, amended or cancelled. The Board shall also give due consideration to the public health standards issued by the Virginia Department of Health with respect to issues of public health policy and protection. If the Board does not follow the public health standards of the Virginia Department of Health, the Board's reason for any deviation shall be made in writing and published for any and all concerned parties.
(3b) Except as provided in subdivision (3a), such standards and policies are to be adopted or modified, amended or cancelled in the manner provided by the Administrative Process Act (§2.2-4000 et seq.).
(4) To conduct or have conducted scientific experiments, investigations, studies, and research to discover methods for maintaining water quality consistent with the purposes of this chapter. To this end the Board may cooperate with any public or private agency in the conduct of such experiments, investigations and research and may receive in behalf of the Commonwealth any moneys that any such agency may contribute as its share of the cost under any such cooperative agreement. Such moneys shall be used only for the purposes for which they are contributed and any balance remaining after the conclusion of the experiments, investigations, studies, and research, shall be returned to the contributors.
(5) To issue, revoke or amend certificates under prescribed conditions for: (a) the discharge of sewage, industrial wastes and other wastes into or adjacent to state waters; (b) the alteration otherwise of the physical, chemical or biological properties of state waters; (c) excavation in a wetland; or (d) on and after October 1, 2001, the conduct of the following activities in a wetland: (i) new activities to cause draining that significantly alters or degrades existing wetland acreage or functions, (ii) filling or dumping, (iii) permanent flooding or impounding, or (iv) new activities that cause significant alteration or degradation of existing wetland acreage or functions. However, to the extent allowed by federal law, any person holding a certificate issued by the Board that is intending to upgrade the permitted facility by installing technology, control equipment, or other apparatus that the permittee demonstrates to the satisfaction of the Director will result in improved energy efficiency, reduction in the amount of nutrients discharged, and improved water quality shall not be required to obtain a new, modified, or amended permit. The permit holder shall provide the demonstration anticipated by this subdivision to the Department no later than 30 days prior to commencing construction.
(5a) All certificates issued by the Board under this chapter shall have fixed terms. The term of a Virginia Pollution Discharge Elimination System permit shall not exceed five years. The term of a Virginia Water Protection Permit shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or permit conditions; however, the term shall not exceed 15 years. The term of a Virginia Pollution Abatement permit shall not exceed 10 years, except that the term of a Virginia Pollution Abatement permit for confined animal feeding operations shall be 10 years. The Department of Environmental Quality shall inspect all facilities for which a Virginia Pollution Abatement permit has been issued to ensure compliance with statutory, regulatory, and permit requirements. Department personnel performing inspections of confined animal feeding operations shall be certified under the voluntary nutrient management training and certification program established in §10.1-104.2. The term of a certificate issued by the Board shall not be extended by modification beyond the maximum duration and the certificate shall expire at the end of the term unless an application for a new permit has been timely filed as required by the regulations of the Board and the Board is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit.
(5b) Any certificate issued by the Board under this chapter may, after notice and opportunity for a hearing, be amended or revoked on any of the following grounds or for good cause as may be provided by the regulations of the Board:
1. The owner has violated any regulation or order of the Board, any condition of a certificate, any provision of this chapter, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the Board, demonstrates the owner's disregard for or inability to comply with applicable laws, regulations, or requirements;
2. The owner has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a certificate, or in any other report or document required under this law or under the regulations of the Board;
3. The activity for which the certificate was issued endangers human health or the environment and can be regulated to acceptable levels by amendment or revocation of the certificate; or
4. There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the certificate necessary to protect human health or the environment.
(5c) Any certificate issued by the Board under this chapter relating to dredging projects governed under Chapter 12 (§28.2-1200 et seq.) or Chapter 13 (§28.2-1300 et seq.) of Title 28.2 may be conditioned upon a demonstration of financial responsibility for the completion of compensatory mitigation requirements. Financial responsibility may be demonstrated by a letter of credit, a certificate of deposit or a performance bond executed in a form approved by the Board. If the U.S. Army Corps of Engineers requires demonstration of financial responsibility for the completion of compensatory mitigation required for a particular project, then the mechanism and amount approved by the U.S. Army Corps of Engineers shall be used to meet this requirement.
(6) To make investigations and inspections, to ensure compliance with any certificates, standards, policies, rules, regulations, rulings and special orders which it may adopt, issue or establish and to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance. In recognition of §§32.1-164 and 62.1-44.18, the Board and the State Department of Health shall enter into a memorandum of understanding establishing a common format to consolidate and simplify inspections of sewage treatment plants and coordinate the scheduling of the inspections. The new format shall ensure that all sewage treatment plants are inspected at appropriate intervals in order to protect water quality and public health and at the same time avoid any unnecessary administrative burden on those being inspected.
(7) To adopt rules governing the procedure of the Board with respect to: (a) hearings; (b) the filing of reports; (c) the issuance of certificates and special orders; and (d) all other matters relating to procedure; and to amend or cancel any rule adopted. Public notice of every rule adopted under this section shall be by such means as the Board may prescribe.
(8a) Except as otherwise provided in Articles 2.4 (§ 62.1-44.15:51 et seq.) and 2.5 (§62.1-44.15:67 et seq.), to issue special orders to owners who (i) are permitting or causing the pollution, as defined by §62.1-44.3, of state waters to cease and desist from such pollution, (ii) have failed to construct facilities in accordance with final approved plans and specifications to construct such facilities in accordance with final approved plans and specifications, (iii) have violated the terms and provisions of a certificate issued by the Board to comply with such terms and provisions, (iv) have failed to comply with a directive from the Board to comply with such directive, (v) have contravened duly adopted and promulgated water quality standards and policies to cease and desist from such contravention and to comply with such water quality standards and policies, (vi) have violated the terms and provisions of a pretreatment permit issued by the Board or by the owner of a publicly owned treatment works to comply with such terms and provisions or (vii) have contravened any applicable pretreatment standard or requirement to comply with such standard or requirement; and also to issue such orders to require any owner to comply with the provisions of this chapter and any decision of the Board. Except as otherwise provided by a separate article, orders issued pursuant to this subdivision may include civil penalties of up to $32,500 per violation, not to exceed $100,000 per order. The Board may assess penalties under this subdivision if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Board or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with subdivision (8b). The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in §2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.), except that civil penalties assessed for violations of Article 9 (§62.1-44.34:8 et seq.) or Article 11 (§62.1-44.34:14 et seq.) shall be paid into the Virginia Petroleum Storage Tank Fund in accordance with §62.1-44.34:11, and except that civil penalties assessed for violations of Article 2.3 (§62.1-44.15:24 et seq.) shall be paid in accordance with the provisions of §62.1-44.15:48.
(8b) Such special orders are to be issued only after a hearing
before a hearing officer appointed by the Supreme Court in accordance with §
2.2-4020 or, if requested by the person, before a quorum of the Board with at
least 30 days' notice to the affected owners, of the time, place and purpose
thereof, and they shall become effective not less than 15 days after service as
provided in §62.1-44.12;, provided that if the Board
finds that any such owner is grossly affecting or presents an imminent and
substantial danger to (i) the public health, safety or welfare, or the health
of animals, fish or aquatic life; (ii) a public water supply; or (iii)
recreational, commercial, industrial, agricultural or other reasonable uses, it
may issue, without advance notice or hearing, an emergency special order
directing the owner to cease such pollution or discharge immediately, and shall
provide an opportunity for a hearing, after reasonable notice as to the time
and place thereof to the owner, to affirm, modify, amend or cancel such
emergency special order. If an owner who has been issued such a special order or
an emergency special order is not complying with the terms thereof, the Board
may proceed in accordance with §62.1-44.23, and where the order is based on a
finding of an imminent and substantial danger, the court shall issue an
injunction compelling compliance with the emergency special order pending a
hearing by the Board. If an emergency special order requires cessation of a
discharge, the Board shall provide an opportunity for a hearing within 48 hours
of the issuance of the injunction.
(8c) The provisions of this section notwithstanding, the Board may proceed directly under §62.1-44.32 for any past violation or violations of any provision of this chapter or any regulation duly promulgated hereunder.
(8d) With the consent of any owner who has violated or failed, neglected or refused to obey any regulation or order of the Board, any condition of a permit or any provision of this chapter, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for past violations in specific sums not to exceed the limit specified in §62.1-44.32 (a). Such civil charges shall be instead of any appropriate civil penalty which could be imposed under §62.1-44.32 (a) and shall not be subject to the provisions of §2.2-514. Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.), excluding civil charges assessed for violations of Article 9 (§62.1-44.34:8 et seq.) or 10 (§ 62.1-44.34:10 et seq.) of Chapter 3.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles, or civil charges assessed for violations of Article 2.3 (§ 62.1-44.15:24 et seq.), or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under that article.
The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action or any other remedy possessed by the Board prior to the effective date of said amendments.
(8e) The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.
(8f) Before issuing a special order under subdivision (8a) or by consent under (8d), with or without an assessment of a civil penalty, to an owner of a sewerage system requiring corrective action to prevent or minimize overflows of sewage from such system, the Board shall provide public notice of and reasonable opportunity to comment on the proposed order. Any such order under subdivision (8d) may impose civil penalties in amounts up to the maximum amount authorized in §309(g) of the Clean Water Act, 33 U.S.C. §1251 et seq. Any person who comments on the proposed order shall be given notice of any hearing to be held on the terms of the order. In any hearing held, such person shall have a reasonable opportunity to be heard and to present evidence. If no hearing is held before issuance of an order under subdivision (8d), any person who commented on the proposed order may file a petition, within 30 days after the issuance of such order, requesting the Board to set aside such order and provide a formal hearing thereon. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Board shall immediately set aside the order, provide a formal hearing, and make such petitioner a party. If the Board denies the petition, the Board shall provide notice to the petitioner and make available to the public the reasons for such denial, and the petitioner shall have the right to judicial review of such decision under §62.1-44.29 if he meets the requirements thereof.
(8g) To issue special orders for violations of this chapter to persons constructing or operating any natural gas transmission pipeline greater than 36 inches inside diameter. An order issued pursuant to this subdivision may include a civil penalty of up to $50,000 per violation, not to exceed $500,000 per order. The Board may assess a penalty under this subdivision if (i) the person has been issued at least two written notices of alleged violation by the Department for violations involving the same pipeline; (ii) such violations have not been resolved by a demonstration that there was no violation, by an order issued by the Board or the Director, including an order pursuant to subdivision (8d), or by other means; and (iii) there is a finding that such violation occurred after a hearing was conducted (a) before a hearing officer appointed by the Supreme Court, (b) in accordance with §2.2-4020, and (c) with at least 30 days' notice to such person of the time, place, and purpose thereof. Such order shall become effective not less than 15 days after service as provided in §62.1-44.12. The actual amount of any penalty assessed shall be based upon the severity of the violation, the extent of any potential or actual environmental harm, the compliance history of the person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be a case decision as defined in §2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact-finding from the Department on whether or not a violation has occurred, and nothing in this subdivision shall preclude a person from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 2.3 (§62.1-44.15:24 et seq.) or 2.4 (§62.1-44.15:51 et seq.) shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund (§62.1-44.15:29).
(9) To make such rulings under §§62.1-44.16, 62.1-44.17, and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by certified mail as soon as practicable after the Board makes them and such rulings to become effective upon such notification.
(10) To adopt such regulations as it deems necessary to enforce the general water quality management program of the Board in all or part of the Commonwealth, except that a description of provisions of any proposed regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable.
(11) To investigate any large-scale killing of fish.
(a) Whenever the Board shall determine that any owner, whether or not he shall have been issued a certificate for discharge of waste, has discharged sewage, industrial waste, or other waste into state waters in such quantity, concentration or manner that fish are killed as a result thereof, it may effect such settlement with the owner as will cover the costs incurred by the Board and by the Department of Wildlife Resources in investigating such killing of fish, plus the replacement value of the fish destroyed, or as it deems proper, and if no such settlement is reached within a reasonable time, the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action.
(b) If the owner is a political subdivision of the Commonwealth, the action may be brought in any circuit court within the territory embraced by such political subdivision. If the owner is an establishment, as defined in this chapter, the action shall be brought in the circuit court of the city or the circuit court of the county in which such establishment is located. If the owner is an individual or group of individuals, the action shall be brought in the circuit court of the city or circuit court of the county in which such person or any of them reside.
(c) For the purposes of this subdivision 11, the State Water Control Board of Environmental Resources
shall be deemed the owner of the fish killed and the proceedings shall be as
though the State Water Control Board of Environmental Resources
were the owner of the fish. The fact that the owner has or held a certificate
issued under this chapter shall not be raised as a defense in bar to any such
action.
(d) The proceeds of any recovery had under this subdivision 11 shall, when received by the Board, be applied, first, to reimburse the Board for any expenses incurred in investigating such killing of fish. The balance shall be paid to the Board of Wildlife Resources to be used for the fisheries' management practices as in its judgment will best restore or replace the fisheries' values lost as a result of such discharge of waste, including, where appropriate, replacement of the fish killed with game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose.
(e) Nothing in this subdivision 11 shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner.
(f) Notwithstanding the foregoing, the provisions of this subdivision 11 shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treating such waters for public water supply purposes, except where negligence is shown.
(12) To administer programs of financial assistance for planning, construction, operation, and maintenance of water quality control facilities for political subdivisions in the Commonwealth.
(13) To establish policies and programs for effective area-wide or basin-wide water quality control and management. The Board may develop comprehensive pollution abatement and water quality control plans on an area-wide or basin-wide basis. In conjunction with this, the Board, when considering proposals for waste treatment facilities, is to consider the feasibility of combined or joint treatment facilities and is to ensure that the approval of waste treatment facilities is in accordance with the water quality management and pollution control plan in the watershed or basin as a whole. In making such determinations, the Board is to seek the advice of local, regional, or state planning authorities.
(14) To establish requirements for the treatment of sewage, industrial wastes and other wastes that are consistent with the purposes of this chapter; however, no treatment shall be less than secondary or its equivalent, unless the owner can demonstrate that a lesser degree of treatment is consistent with the purposes of this chapter.
(15) To promote and establish requirements for the reclamation and reuse of wastewater that are protective of state waters and public health as an alternative to directly discharging pollutants into waters of the state. The requirements shall address various potential categories of reuse and may include general permits and provide for greater flexibility and less stringent requirements commensurate with the quality of the reclaimed water and its intended use. The requirements shall be developed in consultation with the Department of Health and other appropriate state agencies. This authority shall not be construed as conferring upon the Board any power or duty duplicative of those of the State Board of Health.
(16) To establish and implement policies and programs to protect and enhance the Commonwealth's wetland resources. Regulatory programs shall be designed to achieve no net loss of existing wetland acreage and functions. Voluntary and incentive-based programs shall be developed to achieve a net resource gain in acreage and functions of wetlands. The Board shall seek and obtain advice and guidance from the Virginia Institute of Marine Science in implementing these policies and programs.
(17) To establish additional procedures for obtaining a Virginia Water Protection Permit pursuant to §§62.1-44.15:20 and 62.1-44.15:22 for a proposed water withdrawal involving the transfer of water resources between major river basins within the Commonwealth that may impact water basins in another state. Such additional procedures shall not apply to any water withdrawal in existence as of July 1, 2012, except where the expansion of such withdrawal requires a permit under §§62.1-44.15:20 and 62.1-44.15:22, in which event such additional procedures may apply to the extent of the expanded withdrawal only. The applicant shall provide as part of the application (i) an analysis of alternatives to such a transfer, (ii) a comprehensive analysis of the impacts that would occur in the source and receiving basins, (iii) a description of measures to mitigate any adverse impacts that may arise, (iv) a description of how notice shall be provided to interested parties, and (v) any other requirements that the Board may adopt that are consistent with the provisions of this section and §§62.1-44.15:20 and 62.1-44.15:22 or regulations adopted thereunder. This subdivision shall not be construed as limiting or expanding the Board's authority under §§62.1-44.15:20 and 62.1-44.15:22 to issue permits and impose conditions or limitations on the permitted activity.
(18) To be the lead agency for the Commonwealth's nonpoint source pollution management program, including coordination of the nonpoint source control elements of programs developed pursuant to certain state and federal laws, including §319 of the federal Clean Water Act, 33 U.S.C. §1251 et seq. and §6217 of the federal Coastal Zone Management Act. Further responsibilities include the adoption of regulations necessary to implement a nonpoint source pollution management program in the Commonwealth, the distribution of assigned funds, the identification and establishment of priorities to address nonpoint source related water quality problems, the administration of the Statewide Nonpoint Source Advisory Committee, and the development of a program for the prevention and control of soil erosion, sediment deposition, and nonagricultural runoff to conserve Virginia's natural resources.
§62.1-44.15. (Effective July 1, 2024) Powers and duties; civil penalties.
It shall be the duty of the Board and it shall have the authority:
(1) [Repealed.]
(2) To study and investigate all problems concerned with the quality of state waters and to make reports and recommendations.
(2a) To study and investigate methods, procedures, devices, appliances, and technologies that could assist in water conservation or water consumption reduction.
(2b) To coordinate its efforts toward water conservation with other persons or groups, within or without the Commonwealth.
(2c) To make reports concerning, and formulate recommendations based upon, any such water conservation studies to ensure that present and future water needs of the citizens of the Commonwealth are met.
(3a) To establish such standards of quality and policies for any state waters consistent with the general policy set forth in this chapter, and to modify, amend, or cancel any such standards or policies established and to take all appropriate steps to prevent quality alteration contrary to the public interest or to standards or policies thus established, except that a description of provisions of any proposed standard or policy adopted by regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the standard or policy are most properly referable. The Board shall, from time to time, but at least once every three years, hold public hearings pursuant to §2.2-4007.01 but, upon the request of an affected person or upon its own motion, hold hearings pursuant to §2.2-4009, for the purpose of reviewing the standards of quality, and, as appropriate, adopting, modifying, or canceling such standards. Whenever the Board considers the adoption, modification, amendment, or cancellation of any standard, it shall give due consideration to, among other factors, the economic and social costs and benefits which can reasonably be expected to obtain as a consequence of the standards as adopted, modified, amended, or cancelled. The Board shall also give due consideration to the public health standards issued by the Virginia Department of Health with respect to issues of public health policy and protection. If the Board does not follow the public health standards of the Virginia Department of Health, the Board's reason for any deviation shall be made in writing and published for any and all concerned parties.
(3b) Except as provided in subdivision (3a), such standards and policies are to be adopted or modified, amended, or cancelled in the manner provided by the Administrative Process Act (§2.2-4000 et seq.).
(4) To conduct or have conducted scientific experiments, investigations, studies, and research to discover methods for maintaining water quality consistent with the purposes of this chapter. To this end the Board may cooperate with any public or private agency in the conduct of such experiments, investigations, and research and may receive in behalf of the Commonwealth any moneys that any such agency may contribute as its share of the cost under any such cooperative agreement. Such moneys shall be used only for the purposes for which they are contributed and any balance remaining after the conclusion of the experiments, investigations, studies, and research, shall be returned to the contributors.
(5) To issue, revoke, or amend certificates and land-disturbance approvals under prescribed conditions for (a) the discharge of sewage, stormwater, industrial wastes, and other wastes into or adjacent to state waters; (b) the alteration otherwise of the physical, chemical, or biological properties of state waters; (c) excavation in a wetland; or (d) on and after October 1, 2001, the conduct of the following activities in a wetland: (i) new activities to cause draining that significantly alters or degrades existing wetland acreage or functions, (ii) filling or dumping, (iii) permanent flooding or impounding, or (iv) new activities that cause significant alteration or degradation of existing wetland acreage or functions. However, to the extent allowed by federal law, any person holding a certificate issued by the Board that is intending to upgrade the permitted facility by installing technology, control equipment, or other apparatus that the permittee demonstrates to the satisfaction of the Director will result in improved energy efficiency, reduction in the amount of nutrients discharged, and improved water quality shall not be required to obtain a new, modified, or amended permit. The permit holder shall provide the demonstration anticipated by this subdivision to the Department no later than 30 days prior to commencing construction.
(5a) All certificates issued by the Board under this chapter shall have fixed terms. The term of a Virginia Pollution Discharge Elimination System permit shall not exceed five years. The term of a Virginia Water Protection Permit shall be based upon the projected duration of the project, the length of any required monitoring, or other project operations or permit conditions; however, the term shall not exceed 15 years. The term of a Virginia Pollution Abatement permit shall not exceed 10 years, except that the term of a Virginia Pollution Abatement permit for confined animal feeding operations shall be 10 years. The Department of Environmental Quality shall inspect all facilities for which a Virginia Pollution Abatement permit has been issued to ensure compliance with statutory, regulatory, and permit requirements. Department personnel performing inspections of confined animal feeding operations shall be certified under the voluntary nutrient management training and certification program established in §10.1-104.2. The term of a certificate issued by the Board shall not be extended by modification beyond the maximum duration and the certificate shall expire at the end of the term unless an application for a new permit has been timely filed as required by the regulations of the Board and the Board is unable, through no fault of the permittee, to issue a new permit before the expiration date of the previous permit.
(5b) Any certificate or land-disturbance approval issued by the Board under this chapter may, after notice and opportunity for a hearing, be amended or revoked on any of the following grounds or for good cause as may be provided by the regulations of the Board:
1. The owner has violated any regulation or order of the Board, any condition of a certificate or land-disturbance approval, any provision of this chapter, or any order of a court, where such violation results in a release of harmful substances into the environment, poses a substantial threat of release of harmful substances into the environment, causes unreasonable property degradation, or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the Board, demonstrates the owner's disregard for or inability to comply with applicable laws, regulations, or requirements;
2. The owner has failed to disclose fully all relevant material facts or has misrepresented a material fact in applying for a certificate or land-disturbance approval, or in any other report or document required under this law or under the regulations of the Board;
3. The activity for which the certificate or land-disturbance approval was issued endangers human health or the environment or causes unreasonable property degradation and can be regulated to acceptable levels or practices by amendment or revocation of the certificate or land-disturbance approval; or
4. There exists a material change in the basis on which the certificate, land-disturbance approval, or permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge or land-disturbing activity controlled by the certificate, land-disturbance approval, or permit necessary to protect human health or the environment or stop or prevent unreasonable degradation of property.
(5c) Any certificate issued by the Board under this chapter relating to dredging projects governed under Chapter 12 (§28.2-1200 et seq.) or Chapter 13 (§28.2-1300 et seq.) of Title 28.2 may be conditioned upon a demonstration of financial responsibility for the completion of compensatory mitigation requirements. Financial responsibility may be demonstrated by a letter of credit, a certificate of deposit, or a performance bond executed in a form approved by the Board. If the U.S. Army Corps of Engineers requires demonstration of financial responsibility for the completion of compensatory mitigation required for a particular project, then the mechanism and amount approved by the U.S. Army Corps of Engineers shall be used to meet this requirement.
(6) To make investigations and inspections, to ensure compliance with the conditions of any certificates, land-disturbance approvals, standards, policies, rules, regulations, rulings, and orders that it may adopt, issue, or establish, and to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance. In recognition of §§32.1-164 and 62.1-44.18, the Board and the State Department of Health shall enter into a memorandum of understanding establishing a common format to consolidate and simplify inspections of sewage treatment plants and coordinate the scheduling of the inspections. The new format shall ensure that all sewage treatment plants are inspected at appropriate intervals in order to protect water quality and public health and at the same time avoid any unnecessary administrative burden on those being inspected.
(7) To adopt rules governing the procedure of the Board with respect to (a) hearings; (b) the filing of reports; (c) the issuance of certificates and orders; and (d) all other matters relating to procedure; and to amend or cancel any rule adopted. Public notice of every rule adopted under this section shall be by such means as the Board may prescribe.
(8a) Except as otherwise provided in subdivision (19) and Article 2.3 (§62.1-44.15:24 et seq.), to issue special orders to owners, including owners as defined in §62.1-44.15:24, who (i) are permitting or causing the pollution, as defined by §62.1-44.3, of state waters or the unreasonable degradation of property to cease and desist from such pollution or degradation, (ii) have failed to construct facilities in accordance with final approved plans and specifications to construct such facilities in accordance with final approved plans and specifications, (iii) have violated the terms and provisions of a certificate or land-disturbance approval issued by the Board to comply with such terms and provisions, (iv) have failed to comply with a directive from the Board to comply with such directive, (v) have contravened duly adopted and promulgated water quality standards and policies to cease and desist from such contravention and to comply with such water quality standards and policies, (vi) have violated the terms and provisions of a pretreatment permit issued by the Board or by the owner of a publicly owned treatment works to comply with such terms and provisions, or (vii) have contravened any applicable pretreatment standard or requirement to comply with such standard or requirement; and also to issue such orders to require any owner to comply with the provisions of this chapter and any decision of the Board. Except as otherwise provided by a separate article, orders issued pursuant to this subdivision may include civil penalties of up to $ 32,500 per violation, not to exceed $ 100,000 per order. The Board may assess penalties under this subdivision if (a) the person has been issued at least two written notices of alleged violation by the Department for the same or substantially related violations at the same site, (b) such violations have not been resolved by demonstration that there was no violation, by an order issued by the Board or the Director, or by other means, (c) at least 130 days have passed since the issuance of the first notice of alleged violation, and (d) there is a finding that such violations have occurred after a hearing conducted in accordance with subdivision (8b). The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be considered a case decision as defined in §2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact finding from the Department on whether or not a violation has occurred, and nothing in this section shall preclude an owner from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§ 10.1-2500 et seq.), except that civil penalties assessed for violations of Article 9 (§62.1-44.34:8 et seq.) or Article 11 (§62.1-44.34:14 et seq.) shall be paid into the Virginia Petroleum Storage Tank Fund in accordance with §62.1-44.34:11, and except that civil penalties assessed for violations of subdivision (19) or Article 2.3 (§62.1-44.15:24 et seq.) shall be paid into the Stormwater Local Assistance Fund in accordance with §62.1-44.15:29.1.
(8b) Such special orders are to be issued only after a hearing before a hearing officer appointed by the Supreme Court in accordance with § 2.2-4020 or, if requested by the person, before a quorum of the Board with at least 30 days' notice to the affected owners, of the time, place, and purpose thereof, and they shall become effective not less than 15 days after service as provided in 62.1-44.12, provided that if the Board finds that any such owner is grossly affecting or presents an imminent and substantial danger to (i) the public health, safety, or welfare, or the health of animals, fish, or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other reasonable uses, it may issue, without advance notice or hearing, an emergency special order directing the owner to cease such pollution or discharge immediately, and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend, or cancel such emergency special order. If an owner who has been issued such a special order or an emergency special order is not complying with the terms thereof, the Board may proceed in accordance with 62.1-44.23, and where the order is based on a finding of an imminent and substantial danger, the court shall issue an injunction compelling compliance with the emergency special order pending a hearing by the Board. If an emergency special order requires cessation of a discharge, the Board shall provide an opportunity for a hearing within 48 hours of the issuance of the injunction.
(8c) The provisions of this section notwithstanding, the Board may proceed directly under §62.1-44.32 for any past violation or violations of any provision of this chapter or any regulation duly promulgated hereunder.
(8d) Except as otherwise provided in subdivision (19), subdivision 2 of §62.1-44.15:25, or §62.1-44.15:63, with the consent of any owner who has violated or failed, neglected, or refused to obey any regulation or order of the Board, any condition of a certificate, land-disturbance approval, or permit, or any provision of this chapter, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for past violations in specific sums not to exceed the limit specified in subsection (a) of §62.1-44.32. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (a) of § 62.1-44.32 and shall not be subject to the provisions of §2.2-514. Such civil charges shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.), excluding civil charges assessed for violations of Article 9 (§ 62.1-44.34:8 et seq.) or 10 (§62.1-44.34:10 et seq.) of Chapter 3.1, or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under those articles, or civil charges assessed for violations of Article 2.3 (§62.1-44.15:24 et seq.) or 2.5 (§62.1-44.15:67 et seq.) or a regulation, administrative or judicial order, or term or condition of approval relating to or issued under Article 2.3 or 2.5.
The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action or any other remedy possessed by the Board prior to the effective date of said amendments.
(8e) The Board shall develop and provide an opportunity for public comment on guidelines and procedures that contain specific criteria for calculating the appropriate penalty for each violation based upon the severity of the violations, the extent of any potential or actual environmental harm, the compliance history of the facility or person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty.
(8f) Before issuing a special order under subdivision (8a) or by consent under subdivision (8d), with or without an assessment of a civil penalty, to an owner of a sewerage system requiring corrective action to prevent or minimize overflows of sewage from such system, the Board shall provide public notice of and reasonable opportunity to comment on the proposed order. Any such order under subdivision (8d) may impose civil penalties in amounts up to the maximum amount authorized in §309(g) of the Clean Water Act, 33 U.S.C. §1251 et seq. Any person who comments on the proposed order shall be given notice of any hearing to be held on the terms of the order. In any hearing held, such person shall have a reasonable opportunity to be heard and to present evidence. If no hearing is held before issuance of an order under subdivision (8d), any person who commented on the proposed order may file a petition, within 30 days after the issuance of such order, requesting the Board to set aside such order and provide a formal hearing thereon. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Board shall immediately set aside the order, provide a formal hearing, and make such petitioner a party. If the Board denies the petition, the Board shall provide notice to the petitioner and make available to the public the reasons for such denial, and the petitioner shall have the right to judicial review of such decision under §62.1-44.29 if he meets the requirements thereof.
(8g) To issue special orders for violations of this chapter to persons constructing or operating any natural gas transmission pipeline greater than 36 inches inside diameter. An order issued pursuant to this subdivision may include a civil penalty of up to $50,000 per violation, not to exceed $500,000 per order. The Board may assess a penalty under this subdivision if (i) the person has been issued at least two written notices of alleged violation by the Department for violations involving the same pipeline; (ii) such violations have not been resolved by a demonstration that there was no violation, by an order issued by the Board or the Director, including an order pursuant to subdivision (8d), or by other means; and (iii) there is a finding that such violation occurred after a hearing was conducted (a) before a hearing officer appointed by the Supreme Court, (b) in accordance with §2.2-4020, and (c) with at least 30 days' notice to such person of the time, place, and purpose thereof. Such order shall become effective not less than 15 days after service as provided in §62.1-44.12. The actual amount of any penalty assessed shall be based upon the severity of the violation, the extent of any potential or actual environmental harm, the compliance history of the person, any economic benefit realized from the noncompliance, and the ability of the person to pay the penalty. The Board shall provide the person with the calculation for the proposed penalty prior to any hearing conducted for the issuance of an order that assesses penalties pursuant to this subdivision. The issuance of a notice of alleged violation by the Department shall not be a case decision as defined in §2.2-4001. Any notice of alleged violation shall include a description of each violation, the specific provision of law violated, and information on the process for obtaining a final decision or fact-finding from the Department on whether or not a violation has occurred, and nothing in this subdivision shall preclude a person from seeking such a determination. Such civil penalties shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.), except that civil penalties assessed for violations of Article 2.3 (§62.1-44.15:24 et seq.) or 2.4 (§62.1-44.15:51 et seq.) shall be paid into the state treasury and deposited by the State Treasurer into the Virginia Stormwater Management Fund (§62.1-44.15:29).
(9) To make such rulings under §§62.1-44.16, 62.1-44.17, and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by certified mail as soon as practicable after the Board makes them and such rulings to become effective upon such notification.
(10) To adopt such regulations as it deems necessary to enforce the general soil erosion control and stormwater management program and water quality management program of the Board in all or part of the Commonwealth, except that a description of provisions of any proposed regulation which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed, shall be provided to the standing committee of each house of the General Assembly to which matters relating to the content of the regulation are most properly referable.
(11) To investigate any large-scale killing of fish.
(a) Whenever the Board shall determine that any owner, whether or not he shall have been issued a certificate for discharge of waste, has discharged sewage, industrial waste, or other waste into state waters in such quantity, concentration, or manner that fish are killed as a result thereof, it may effect such settlement with the owner as will cover the costs incurred by the Board and by the Department of Wildlife Resources in investigating such killing of fish, plus the replacement value of the fish destroyed, or as it deems proper, and if no such settlement is reached within a reasonable time, the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action.
(b) If the owner is a political subdivision of the Commonwealth, the action may be brought in any circuit court within the territory embraced by such political subdivision. If the owner is an establishment, as defined in this chapter, the action shall be brought in the circuit court of the city or the circuit court of the county in which such establishment is located. If the owner is an individual or group of individuals, the action shall be brought in the circuit court of the city or circuit court of the county in which such person or any of them reside.
(c) For the purposes of this subdivision (11), the State Water
Control Board of Environmental Resources
shall be deemed the owner of the fish killed and the proceedings shall be as
though the State Water Control Board of Environmental Resources
were the owner of the fish. The fact that the owner has or held a certificate
issued under this chapter shall not be raised as a defense in bar to any such
action.
(d) The proceeds of any recovery had under this subdivision (11) shall, when received by the Board, be applied, first, to reimburse the Board for any expenses incurred in investigating such killing of fish. The balance shall be paid to the Board of Wildlife Resources to be used for the fisheries' management practices as in its judgment will best restore or replace the fisheries' values lost as a result of such discharge of waste, including, where appropriate, replacement of the fish killed with game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose.
(e) Nothing in this subdivision (11) shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner.
(f) Notwithstanding the foregoing, the provisions of this subdivision (11) shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treating such waters for public water supply purposes, except where negligence is shown.
(12) To administer programs of financial assistance for planning, construction, operation, and maintenance of water quality control facilities for political subdivisions in the Commonwealth.
(13) To establish policies and programs for effective area-wide or basin-wide water quality control and management. The Board may develop comprehensive pollution abatement and water quality control plans on an area-wide or basin-wide basis. In conjunction with this, the Board, when considering proposals for waste treatment facilities, is to consider the feasibility of combined or joint treatment facilities and is to ensure that the approval of waste treatment facilities is in accordance with the water quality management and pollution control plan in the watershed or basin as a whole. In making such determinations, the Board is to seek the advice of local, regional, or state planning authorities.
(14) To establish requirements for the treatment of sewage, industrial wastes, and other wastes that are consistent with the purposes of this chapter; however, no treatment shall be less than secondary or its equivalent, unless the owner can demonstrate that a lesser degree of treatment is consistent with the purposes of this chapter.
(15) To promote and establish requirements for the reclamation and reuse of wastewater that are protective of state waters and public health as an alternative to directly discharging pollutants into waters of the state. The requirements shall address various potential categories of reuse and may include general permits and provide for greater flexibility and less stringent requirements commensurate with the quality of the reclaimed water and its intended use. The requirements shall be developed in consultation with the Department of Health and other appropriate state agencies. This authority shall not be construed as conferring upon the Board any power or duty duplicative of those of the State Board of Health.
(16) To establish and implement policies and programs to protect and enhance the Commonwealth's wetland resources. Regulatory programs shall be designed to achieve no net loss of existing wetland acreage and functions. Voluntary and incentive-based programs shall be developed to achieve a net resource gain in acreage and functions of wetlands. The Board shall seek and obtain advice and guidance from the Virginia Institute of Marine Science in implementing these policies and programs.
(17) To establish additional procedures for obtaining a Virginia Water Protection Permit pursuant to §§62.1-44.15:20 and 62.1-44.15:22 for a proposed water withdrawal involving the transfer of water resources between major river basins within the Commonwealth that may impact water basins in another state. Such additional procedures shall not apply to any water withdrawal in existence as of July 1, 2012, except where the expansion of such withdrawal requires a permit under §§62.1-44.15:20 and 62.1-44.15:22, in which event such additional procedures may apply to the extent of the expanded withdrawal only. The applicant shall provide as part of the application (i) an analysis of alternatives to such a transfer, (ii) a comprehensive analysis of the impacts that would occur in the source and receiving basins, (iii) a description of measures to mitigate any adverse impacts that may arise, (iv) a description of how notice shall be provided to interested parties, and (v) any other requirements that the Board may adopt that are consistent with the provisions of this section and §§62.1-44.15:20 and 62.1-44.15:22 or regulations adopted thereunder. This subdivision shall not be construed as limiting or expanding the Board's authority under §§62.1-44.15:20 and 62.1-44.15:22 to issue permits and impose conditions or limitations on the permitted activity.
(18) To be the lead agency for the Commonwealth's nonpoint source pollution management program, including coordination of the nonpoint source control elements of programs developed pursuant to certain state and federal laws, including §319 of the federal Clean Water Act, 33 U.S.C. §1251 et seq. and §6217 of the federal Coastal Zone Management Act. Further responsibilities include the adoption of regulations necessary to implement a nonpoint source pollution management program in the Commonwealth, the distribution of assigned funds, the identification and establishment of priorities to address nonpoint source related water quality problems, the administration of the Statewide Nonpoint Source Advisory Committee, and the development of a program for the prevention and control of soil erosion, sediment deposition, and nonagricultural runoff to conserve Virginia's natural resources.
(19) To review for compliance with the provisions of this chapter the Virginia Erosion and Stormwater Management Programs adopted by localities pursuant to §62.1-44.15:27, the Virginia Erosion and Sediment Control Programs adopted by localities pursuant to subdivision B 3 of § 62.1-44.15:27, and the programs adopted by localities pursuant to the Chesapeake Bay Preservation Act (§62.1-44.15:67 et seq.). The Board shall develop and implement a schedule for conducting such program reviews as often as necessary but at least once every five years. Following the completion of a compliance review in which deficiencies are found, the Board shall establish a schedule for the locality to follow in correcting the deficiencies and bringing its program into compliance. If the locality fails to bring its program into compliance in accordance with the compliance schedule, then the Board is authorized to (i) issue a special order to any locality imposing a civil penalty not to exceed $ 5,000 per violation with the maximum amount not to exceed $ 50,000 per order for noncompliance with the state program, to be paid into the state treasury and deposited in the Stormwater Local Assistance Fund established in §62.1-44.15:29.1 or (ii) with the consent of the locality, provide in an order issued against the locality for the payment of civil charges for violations in lieu of civil penalties, in specific sums not to exceed the limit stated in this subdivision. Such civil charges shall be in lieu of any appropriate civil penalty that could be imposed under subsection (a) of §62.1-44.32 and shall not be subject to the provisions of §2.2-514. The Board shall not delegate to the Department its authority to issue special orders pursuant to clause (i). In lieu of issuing an order, the Board is authorized to take legal action against a locality pursuant to §62.1-44.23 to ensure compliance.
§62.1-44.15:6. Permit fee regulations.
A. The Board shall promulgate regulations establishing a fee
assessment and collection system to recover a portion of the State Water Control Board's Board of Environmental Resources',
the Department of Wildlife Resources',
and the Department of Conservation and Recreation's direct and indirect costs
associated with the processing of an application to issue, reissue, amend, or modify any permit or
certificate, which the Board has authority to issue under this chapter and
Chapters 24 (§62.1-242 et seq.) and 25 (§62.1-254 et seq.) of this title, from the
applicant for such permit or certificate for the purpose of more efficiently
and expeditiously processing permits. The fees shall be exempt from statewide
indirect costs charged and collected by the Department of Accounts. The Board
shall have no authority to charge such fees where the authority to issue such
permits has been delegated to another agency that imposes permit fees.
B1. Permit fees charged an applicant for a Virginia Pollutant
Discharge Elimination System permit or a Virginia Pollution Abatement permit
shall reflect the average time and complexity of processing a permit in each of
the various categories of permits and permit actions. However, notwithstanding
any other provision of law, in no instance shall the Board charge a fee for a
permit pertaining to a farming operation engaged in production for market or
for a permit pertaining to maintenance dredging for federal navigation channels
or other Corps of Engineers- Engineers-sponsored or
Department of the Navy-sponsored dredging projects or for the regularly scheduled
renewal of an individual permit for an existing facility. Fees shall be charged
for a major modification or reissuance of a permit initiated by the permittee
that occurs between permit issuance and the stated expiration date. No fees
shall be charged for a modification or amendment made at the Board's
initiative. In no instance shall the Board exceed the following amounts for the
processing of each type of permit/certificate category:
|
Type of Permit/Certificate Category |
Maximum Amount |
|
|
1. Virginia Pollutant Discharge Elimination System |
|
|
|
Major Industrial |
$24,000 |
|
|
Major Municipal |
$21,300 |
|
|
Minor Industrial with nonstandard limits |
$10,300 |
|
|
Minor Industrial with standard limits |
$6,600 |
|
|
Minor Municipal greater than 100,000 gallons per day |
$7,500 |
|
|
Minor Municipal 10,001-100,000 gallons per day |
$6,000 |
|
|
Minor Municipal 1,000-10,000 gallons per day |
$5,400 |
|
|
Minor Municipal less than 1,000 gallons per day |
$2,000 |
|
|
General-industrial stormwater management |
$500 |
|
|
General-stormwater management-phase I land clearing |
$500 |
|
|
General-stormwater management-phase II land clearing |
$300 |
|
|
General-other |
$600 |
|
|
2. Virginia Pollution Abatement |
|
|
|
Industrial/Wastewater 10 or more inches per year |
$15,000 |
|
|
Industrial/Wastewater less than 10 inches per year |
$10,500 |
|
|
Industrial/Sludge |
$7,500 |
|
|
Municipal/Wastewater |
$13,500 |
|
|
Municipal/Sludge |
$7,500 |
|
|
General Permit |
$600 |
|
|
Other |
$750 |
The fee for the major modification of a permit or certificate that occurs between the permit issuance and expiration dates shall be 50 percent of the maximum amount established by this subsection. No fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, "minor modifications" or "minor amendments" means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.
B2. Each permitted facility shall pay a permit maintenance fee to the Board by October 1 of each year, not to exceed the following amounts:
|
Type of Permit/Certificate Category |
Maximum Amount |
|
|
1. Virginia Pollutant Discharge Elimination System |
|
|
|
Major Industrial |
$4,800 |
|
|
Major Municipal greater than 10 million gallons per day |
$4,750 |
|
|
Major Municipal 2-10 million gallons per day |
$4,350 |
|
|
Major Municipal less than 2 million gallons per day |
$3,850 |
|
|
Minor Industrial with nonstandard limits |
$2,040 |
|
|
Minor Industrial with standard limits |
$1,320 |
|
|
Minor Industrial water treatment system |
$1,200 |
|
|
Minor Municipal greater than 100,000 gallons per day |
$1,500 |
|
|
Minor Municipal 10,001-100,000 gallons per day |
$1,200 |
|
|
Minor Municipal 1,000-10,000 gallons per day |
$1,080 |
|
|
Minor Municipal less than 1,000 gallons per day |
$400 |
|
|
2. Virginia Pollution Abatement |
|
|
|
Industrial/Wastewater 10 or more inches per year |
$3,000 |
|
|
Industrial/Wastewater less than 10 inches per year |
$2,100 |
|
|
Industrial/Sludge |
$3,000 |
|
|
Municipal/Wastewater |
$2,700 |
|
|
Municipal/Sludge |
$1,500 |
An additional permit maintenance fee of $1,000 shall be collected from facilities in a toxics management program and an additional permit maintenance fee shall be collected from facilities that have more than five process wastewater discharge outfalls. Permit maintenance fees shall be collected annually and shall be remitted by October 1 of each year. For a local government or public service authority with permits for multiple facilities in a single jurisdiction, the permit maintenance fees for permits held as of April 1, 2004, shall not exceed $20,000 per year. No permit maintenance fee shall be assessed for facilities operating under a general permit or for permits pertaining to a farming operation engaged in production for market.
B3. Permit application fees charged for Virginia Water Protection Permits, ground water withdrawal permits, and surface water withdrawal permits shall reflect the average time and complexity of processing a permit in each of the various categories of permits and permit actions and the size of the proposed impact. Only one permit fee shall be assessed for a water protection permit involving elements of more than one category of permit fees under this section. The fee shall be assessed based upon the primary purpose of the proposed activity. In no instance shall the Board charge a fee for a permit pertaining to maintenance dredging for federal navigation channels or other U.S. Army Corps of Engineers- or Department of the Navy-sponsored dredging projects, and in no instance shall the Board exceed the following amounts for the processing of each type of permit/certificate category:
|
Type of Permit |
Maximum Amount |
|
|
1. Virginia Water Protection |
|
|
|
Individual-wetland impacts |
$2,400 plus $220 per 1/10 acre of impact over two acres, not to exceed $60,000 |
|
|
Individual-minimum instream flow |
$25,000 |
|
|
Individual-reservoir |
$35,000 |
|
|
Individual-nonmetallic mineral mining |
$7,500 |
|
|
General-less than 1/10 acre impact |
$0 |
|
|
General-1/10 to 1/2 acre impact |
$600 |
|
|
General-greater than 1/2 to one acre impact |
$1,200 |
|
|
General-greater than one acre to two acres of impact |
$120 per 1/10 acre of impact |
|
|
2. Ground Water Withdrawal |
$9,000 |
|
|
3. Surface Water Withdrawal |
$12,000 |
No fees shall be charged for minor modifications or minor amendments to such permits. For the purpose of this subdivision, "minor modifications" or "minor amendments" means specific types of changes defined by the Board that are made to keep the permit current with routine changes to the facility or its operation that do not require extensive review. A minor permit modification or amendment does not substantially alter permit conditions, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.
C. When promulgating regulations establishing permit fees, the Board shall take into account the permit fees charged in neighboring states and the importance of not placing existing or prospective industries in the Commonwealth at a competitive disadvantage.
D. Beginning January 1, 1998, and January 1 of every even-numbered year thereafter, the Board shall make a report on the implementation of the water permit program to the Senate Committee on Agriculture, Conservation and Natural Resources, the Senate Committee on Finance and Appropriations, the House Committee on Appropriations, the House Committee on Agriculture, Chesapeake and Natural Resources and the House Committee on Finance. The report shall include the following: (i) the total costs, both direct and indirect, including the costs of overhead, water quality planning, water quality assessment, operations coordination, and surface water and ground water investigations, (ii) the total fees collected by permit category, (iii) the amount of general funds allocated to the Board, (iv) the amount of federal funds received, (v) the Board's use of the fees, the general funds, and the federal funds, (vi) the number of permit applications received by category, (vii) the number of permits issued by category, (viii) the progress in eliminating permit backlogs, (ix) the timeliness of permit processing, and (x) the direct and indirect costs to neighboring states of administering their water permit programs, including what activities each state categorizes as direct and indirect costs, and the fees charged to the permit holders and applicants.
E. Fees collected pursuant to this section shall not supplant or reduce in any way the general fund appropriation to the Board.
F. Permit fee schedules shall apply to permit programs in existence on July 1, 1992, any additional permits that may be required by the federal government and administered by the Board, or any new permit required pursuant to any law of the Commonwealth.
G. The Board is authorized to promulgate regulations establishing a schedule of reduced permit fees for facilities that have established a record of compliance with the terms and requirements of their permits and shall establish criteria by regulation to provide for reductions in the annual fee amount assessed for facilities accepted into the Department's programs to recognize excellent environmental performance.
§62.1-44.15:7. State Water Control Permit Program Fund established; use of moneys.
A. There is hereby established a special, nonreverting fund in
the state treasury to be known as the State Water Control Board
Permit Program Fund, hereafter referred to as the Fund. Notwithstanding the provisions
of §2.2-1802, all moneys collected pursuant to §62.1-44.15:6 shall be paid
into the state treasury to the credit of the Fund.
B. Any moneys remaining in the Fund shall not revert to the general fund but shall remain in the Fund. Interest earned on such moneys shall remain in the Fund and be credited to it.
C. The Board is authorized and empowered to release moneys
from the Fund, on warrants issued by the State Comptroller, for the purposes of
recovering portions of the costs of processing applications under this chapter
and Chapters 24 (§62.1-242 et seq.) and 25 (§62.1-254 et seq.) of this title under the
direction of the Executive Director.
D. An accounting of moneys received by and distributed from the Fund shall be kept by the State Comptroller and furnished upon request to the Governor or the General Assembly.
§62.1-44.15:24. (Effective until July 1, 2024) Definitions.
As used in this article, unless the context requires a different meaning:
"Agreement in lieu of a stormwater management plan" means a contract between the VSMP authority and the owner or permittee that specifies methods that shall be implemented to comply with the requirements of a VSMP for the construction of a (i) single-family residence or (ii) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than five percent; such contract may be executed by the VSMP authority in lieu of a stormwater management plan.
"Chesapeake Bay Preservation Act land-disturbing activity" means a land-disturbing activity including clearing, grading, or excavation that results in a land disturbance equal to or greater than 2,500 square feet and less than one acre in all areas of jurisdictions designated as subject to the regulations adopted pursuant to the Chesapeake Bay Preservation provisions of this chapter.
"CWA" means the federal Clean Water Act (33 U.S.C. § 1251 et seq.), formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, as amended by P.L. 95-217, P.L. 95-576, P.L. 96-483, and P.L. 97-117, or any subsequent revisions thereto.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"Farm building or structure" means the same as that term is defined in §36-97 and also includes any building or structure used for agritourism activity, as defined in §3.2-6400, and any related impervious surfaces including roads, driveways, and parking areas.
"Flooding" means a volume of water that is too great to be confined within the banks or walls of the stream, water body, or conveyance system and that overflows onto adjacent lands, thereby causing or threatening damage.
"Land disturbance" or "land-disturbing activity" means a man-made change to the land surface that potentially changes its runoff characteristics including clearing, grading, or excavation, except that the term shall not include those exemptions specified in § 62.1-44.15:34.
"Municipal separate storm sewer" means a conveyance or system of conveyances otherwise known as a municipal separate storm sewer system or "MS4," including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains:
1. Owned or operated by a federal, state, city, town, county, district, association, or other public body, created by or pursuant to state law, having jurisdiction or delegated authority for erosion and sediment control and stormwater management, or a designated and approved management agency under §208 of the CWA that discharges to surface waters;
2. Designed or used for collecting or conveying stormwater;
3. That is not a combined sewer; and
4. That is not part of a publicly owned treatment works.
"Municipal Separate Storm Sewer System Management Program" means a management program covering the duration of a state permit for a municipal separate storm sewer system that includes a comprehensive planning process that involves public participation and intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA and regulations, and this article and its attendant regulations, using management practices, control techniques, and system, design, and engineering methods, and such other provisions that are appropriate.
"Nonpoint source pollution" means pollution such as sediment, nitrogen, phosphorus, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater runoff.
"Peak flow rate" means the maximum instantaneous flow from a prescribed design storm at a particular location.
"Permit" or "VSMP authority permit" means an approval to conduct a land-disturbing activity issued by the VSMP authority for the initiation of a land-disturbing activity after evidence of state VSMP general permit coverage has been provided where applicable.
"Permittee" means the person to which the permit or state permit is issued.
"Runoff volume" means the volume of water that runs off the land development project from a prescribed storm event.
"Rural Tidewater locality" means any locality that is (i) subject to the provisions of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.) and (ii) eligible to join the Rural Coastal Virginia Community Enhancement Authority established by Chapter 76 (§15.2-7600 et seq.) of Title 15.2.
"Small construction activity" means:
1. A construction activity, including clearing, grading, or excavating, that results in land disturbance of equal to or greater than one acre and less than five acres. "Small construction activity" also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb an area equal to or greater than one acre and less than five acres. "Small construction activity" does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.
The Board may waive the otherwise applicable requirements in a general permit for a stormwater discharge from construction activities that disturb less than five acres where stormwater controls are not needed based on an approved total maximum daily load (TMDL) that addresses the pollutants of concern or, for nonimpaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. For the purpose of this subdivision, the pollutants of concern include sediment or a parameter that addresses sediment, such as total suspended solids, turbidity, or siltation, and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator shall certify to the Board that the construction activity will take place, and that stormwater discharges will occur, within the drainage area addressed by the TMDL or provide an equivalent analysis.
As of the start date in the table of start dates for electronic submissions of Virginia Pollutant Discharge Elimination System (VPDES) information within the regulation governing the implementation of electronic reporting requirements for certain VPDES permittees, facilities, and entities, all certifications submitted in support of such waiver shall be submitted electronically by the owner or operator to the Department in compliance with (i) this subdivision; (ii) 40 C.F.R. Part 3, including, in all cases, 40 C.F.R. Part 3 Subpart D; (iii) the regulation addressing signatories to state permit applications and reports; and (iv) regulations addressing the VPDES electronic reporting requirements. Such regulations addressing the VPDES electronic reporting requirements shall not undo existing requirements for electronic reporting. Prior to such date, and independent of the regulations addressing the VPDES electronic reporting requirements, a permittee shall be required to report electronically if specified by a particular permit.
2. Any other construction activity designated by either the Board or the Regional Administrator of the U.S. Environmental Protection Agency, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to surface waters.
"State permit" means an approval to conduct a
land-disturbing activity issued by the Board in the form of a state stormwater
individual permit or coverage issued under a state general permit or an
approval issued by the Board for stormwater discharges from an MS4. Under these
permits, the Commonwealth imposes and enforces requirements pursuant to the federal Clean Water Act CWA and regulations and this
article and its attendant regulations.
"Stormwater" means precipitation that is discharged across the land surface or through conveyances to one or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.
"Stormwater management plan" means a document containing material describing methods for complying with the requirements of a VSMP.
"Subdivision" means the same as defined in § 15.2-2201.
"Virginia Stormwater Management Program" or
"VSMP" means a program approved by the Soil and Water Conservation
Board after September 13, 2011, and until June 30, 2013, or the State Water Control Board of Environmental Resources on
and after June 30, 2013, that has been established by a VSMP authority to
manage the quality and quantity of runoff resulting from land-disturbing
activities and shall include such items as local ordinances, rules, permit
requirements, annual standards and specifications, policies and guidelines,
technical materials, and requirements for plan review, inspection, enforcement,
where authorized in this article, and evaluation consistent with the
requirements of this article and associated regulations.
"Virginia Stormwater Management Program authority" or "VSMP authority" means an authority approved by the Board after September 13, 2011, to operate a Virginia Stormwater Management Program or the Department. An authority may include a locality; state entity, including the Department; federal entity; or, for linear projects subject to annual standards and specifications in accordance with subsection B of §62.1-44.15:31, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to §15.2-5102.
"Water quality volume" means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project.
"Water quantity technical criteria" means standards set forth in regulations adopted pursuant to this article that establish minimum design criteria for measures to control localized flooding and stream channel erosion.
"Watershed" means a defined land area drained by a river or stream, karst system, or system of connecting rivers or streams such that all surface water within the area flows through a single outlet. In karst areas, the karst feature to which water drains may be considered the single outlet for the watershed.
§62.1-44.36. Responsibility of Board of Environmental Resources; formulation of policy.
Being cognizant of the crucial importance of the
Commonwealth's water resources to the health and welfare of the people of
Virginia and of the need of a water supply to assure further industrial growth
and economic prosperity for the Commonwealth, and recognizing the necessity for
continuous cooperative planning and effective state-level guidance in the use
of water resources, the State Water Control
Board of Environmental Resources is
assigned the responsibility for planning the development, conservation and
utilization of Virginia's water resources.
The Board shall continue the study of existing water resources of the Commonwealth, means and methods of conserving and augmenting such water resources, and existing and contemplated uses and needs of water for all purposes. Based upon these studies and policies that have been initiated by the Division of Water Resources, and after an opportunity has been given to all concerned state agencies and political subdivisions to be heard, the Board shall formulate a coordinated policy for the use and control of all the water resources of the Commonwealth and issue a statement thereof. In formulating the Commonwealth's water resources policy, the Board shall, among other things, take into consideration the following principles and policies:
1. Existing water rights are to be protected and preserved subject to the principle that all of the state waters belong to the public for use by the people for beneficial purposes without waste.
2. Adequate and safe supplies shall be preserved and protected for human consumption, while conserving maximum supplies for other beneficial uses. When proposed uses of water are in mutually exclusive conflict or when available supplies of water are insufficient for all who desire to use them, preference shall be given to human consumption purposes over all other uses.
3. It is in the public interest that integration and coordination of uses of water, especially by localities with shared water supplies, and augmentation of existing supplies for all beneficial purposes be achieved for the maximum economic development thereof for the benefit of the Commonwealth as a whole.
4. In considering the benefits to be derived from drainage, consideration shall also be given to possible harmful effects upon ground water supplies and protection of wildlife.
5. The maintenance of stream flows sufficient to support aquatic life and to minimize pollution shall be fostered and encouraged.
6. Watershed development policies shall be favored, whenever possible, for the preservation of balanced multiple uses, and project construction and planning with those ends in view shall be encouraged.
7. Due regard shall be given in the planning and development of water recreation facilities to safeguard against pollution.
The statement of water resource policy shall be revised from time to time whenever the Board determines it to be in the public interest.
The initial statement of state water resource policy and any subsequent revisions thereof shall be furnished by the Board to all state agencies and to all political subdivisions of the Commonwealth.
§62.1-44.115. Review of uses by Board of Environmental Resources; report.
The State Water Control
Board of Environmental Resources
shall annually review the uses and development of the waters of the Potomac
River, and make such report thereon
as it deems advisable to the Governor and to the General Assembly, together
with such recommendations as the Board feels determines are necessary for
the protection and full enjoyment of Virginia's riparian rights in such river.
§62.1-44.116. Assistance by Board of Environmental Resources in riparian disputes.
In the event non-Virginia claimants question or seek to
abridge the riparian use of the waters of the Potomac River by Virginia
riparian owners, the State Water Control
Board of Environmental Resources
shall advise and assist such riparian owners in the proper exercise and
protection of their rights, giving due consideration to the rights of others
and to the wise use of the water, and the Board shall assist in the resolution
of conflicts concerning such rights.
§62.1-67. Appointment, terms, and qualifications of members; alternate members.
The Commission shall consist of three members as follows: one
legislative member of the Commission on Intergovernmental Cooperation who
resides in the Potomac River drainage basin, appointed by the Joint Rules
Committee; one nonlegislative citizen member at large who resides in the
Potomac River drainage basin, appointed by the Governor; and the executive director Executive Director of the State Water Control Board of Environmental Resources.
Appointments to fill vacancies shall be made for the respective unexpired
terms. One of the members shall be designated by the Governor as chairman. The
Governor and the Joint Rules Committee shall appoint alternate members for their
appointees to the Commission, who shall reside in the Potomac River drainage
basin, and each alternate shall have power to act in the absence of the person
for whom he is alternate. The legislative member and
executive director Executive Director
of the State Water Control Board of Environmental Resources
shall serve terms coincident with their terms of office and the member
appointed by the Governor shall serve a term of four years. The terms of each
alternate shall run concurrently with the term of the member for whom he is an alternate. All members may
be reappointed.
§62.1-69. Duties of Commission; powers and duties of Board of Environmental Resources not affected; dams or structures for production of electric power.
The Potomac River Basin Commission of Virginia shall, if and when it shall come into existence as hereinabove provided, act jointly with commissions appointed for a like purpose by the states of West Virginia and Maryland, the Commonwealth of Pennsylvania and the District of Columbia, or by such of the same as shall enter into the compact and with an additional three members to be appointed by the President of the United States, as a unit of the Interstate Commission on the Potomac River Basin which shall be constituted as provided by the compact hereinabove mentioned. The Potomac River Basin Commission of Virginia shall perform such further duties as shall be provided by the compact.
No provision of this chapter or application thereof shall
operate to repeal, limit, affect, or
impair any provision or application of Chapter 3.1 the State Water Control Law
(§62.1-44.2 et seq.) of Title 62.1;, and no provision of this
chapter shall have any effect upon the powers and duties of the State Water Control Board created by Chapter 3.1 (§62.1-44.2
et seq.) of Title 62.1 of
Environmental Resources and the operation of such Board
over the waters of the Commonwealth subject to its jurisdiction. Members of the
Potomac River Basin Commission of Virginia are prohibited from voting in favor
of any measure before the Interstate Potomac River Basin Commission which that
might have any effect upon the powers and duties of the State Water
Control Board of Environmental Resources
without the consent of such Board first had and obtained. Members of the
Potomac River Basin Commission of Virginia are prohibited from voting in favor
of the construction, with public funds, of any dam or other structure upon the
Potomac River or its tributaries in Virginia, which dam or other structure is
used or is capable of being used, directly or indirectly, in whole or in part
and whether as a single or multiple purpose, for the production by any
government or any agency or instrumentality thereof, of electric power and
energy.
§62.1-69.25. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Rappahannock River Basin" means that land area
designated as the Rappahannock River Basin by the State Water
Control Board of Environmental Resources
pursuant to §62.1-44.38 and which is also found in the Twenty-fifth,
Twenty-seventh, Twenty-eighth, and Thirty-first Senatorial Districts or the
Thirtieth, Sixty-first, Sixty-second, Sixty-third, Sixty-fourth, Sixty-fifth,
Sixty-sixth, Sixty-seventh, and Sixty-eighth House of Delegates Districts, as
those districts exist on January 1, 2024.
§62.1-69.36. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Basin" means the Roanoke River Basin.
"Roanoke River Basin" means that land area
designated as the Roanoke River Basin by the Virginia
State Water Control Board of
Environmental Resources, pursuant to §62.1-44.38, and the
North Carolina Department of Environment and Natural Resources.
§62.1-69.45. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Rivanna River Basin" means that land area
designated as the Rivanna River Basin by the State Water
Control Board of Environmental Resources pursuant
to §62.1-44.38 and that is also found in the Fifteenth, Seventeenth,
Twenty-fourth and Twenty-fifth state Senatorial districts or the Twenty-fifth,
Fifty-seventh, Fifty-eighth and Fifty-ninth House of Delegates districts, as
those districts existed on January 1, 2002.
§62.1-73. Appointment and removal of Virginia members of Commission.
In pursuance of Article IV of said compact there shall be
three members of the Ohio River Valley Water Sanitation Commission from
Virginia. Two members of the Commission shall be appointed by the Governor,
subject to confirmation by the General Assembly, from the membership of the State Water Control Board continued under §62.1-44.7 of Environmental Resources.
The term of the commissioner shall be coincident with that of his term upon the State Water Control Board of Environmental Resources.
Any vacancy in the office of the commissioner shall be filled by appointment by
the Governor. The third Virginia member of the Commission shall be the Director
of the Department of Environmental Quality. Any member of the Commission
appointed pursuant to this section who cannot be present at a meeting of the
Commission, or at any committee or subcommittee of the Commission, may
designate any employee of the Department of Environmental Quality or a member
of the State Water Control Board of Environmental Resources to
attend the meeting and vote on his behalf.
Any commissioner may be removed from office by the Governor.
§62.1-85. License required to construct dam; application.
The construction or reconstruction of any such dam as is
mentioned in §62.1-83 shall not be begun until the person, firm, association,
corporation, private or municipal, or public utility as defined in §56-232
proposing to construct or reconstruct the same shall first obtain a license so
to do from the State Corporation Commission. The application for such license
shall be filed with the Commission and in it all the essential facts shall be
stated to enable the Commission to pass upon its merits. A copy of such
application shall also be filed by the applicant with the Executive Director of
the State Water Control Board of Environmental Resources
within ten 10
days after filing such application with the State Corporation Commission. Each
application for license shall be accompanied by such maps, plans and other
information as may be necessary to give a clear and full understanding of the
proposed scheme of development, and of dams, generating stations or other major
structures, if any, involved therein.
§62.1-104. Definitions.
(1) Except
as modified below in this section, the
definitions contained in Title 1 shall
apply in to
this chapter. (2) As used in this chapter, unless the context
requires a different meaning:
"Board" means the State Water
Control Board of Environmental Resources.
However, when used outside the context of the promulgation of regulations,
including regulations to establish general permits, pursuant to this chapter,
"Board" means the Department of Environmental Quality.
(3) "Impounding
structure" means a man-made device, whether a dam across a watercourse or
other structure outside a watercourse, used or to be used for the authorized
storage of flood waters for subsequent beneficial use.
(4) "Watercourse"
means a natural channel having a well-defined bed and banks and in which water
flows when it normally does flow. For the purposes
hereof they shall be of this chapter,
"watercourse" is limited to rivers, creeks,
streams, branches, and other watercourses which that are nonnavigable in fact
and which that
are wholly within the jurisdiction of the Commonwealth.
(5) "Riparian
land" is land which that is contiguous to and
touches a watercourse. It does not include land outside the watershed of the
watercourse. Real property under common ownership and which that is not separated from
riparian land by land of any other ownership shall likewise be deemed riparian
land, notwithstanding that such real property is divided into tracts and
parcels which that
may not bound upon the watercourse.
(6) "Riparian
owner" is an owner of riparian land.
(7) "Average
flow" means the average discharge of a stream at a particular point and
normally is expressed in cubic feet per second. It may be determined from
actual measurements or computed from the most accurate information available.
(8) "Diffused
surface waters" are those which, resulting from precipitation, flow down
across the surface of the land until they reach a watercourse, after which they
become parts of streams.
(9) "Floodwaters"
means water in a stream which that is over and above the
average flow.
(10) "Court"
means the circuit court of the county or city in which an impoundment is
located or proposed to be located.
§62.1-105. Impoundment of diffused surface waters.
Diffused surface waters may be captured and impounded by the
owner of the land on which they are present and, when so impounded, become the
property of that owner. Such impoundment shall not cause damage to others;
however, the owner of land on which an impounding structure as
defined in §10.1-604 is to be located shall comply with
the rules and regulations of the State Water Control
Board of Environmental Resources.
§62.1-106. When floodwaters may be captured and stored by riparian owners.
Water in watercourses which that is over and above the average
flow of the stream may, upon approval, be captured and stored by riparian
owners for their later use under the following conditions:
(1) 1. As a result of the capture
and storage of such waters, there will be no damage to others.
(2) 2. The title to the land on
which the impounding structure and the impounded water will rest are in the
person or persons requesting the authority.
(3) 3. All costs incident to such
impoundment, including devices above and below for indicating average flow,
will be borne by the person or persons requesting the authority.
(4) 4. For impoundments with a
capacity of more than fifty 50 acre-feet of storage, all construction is approved
by a licensed professional engineer. For those with capacities of fifty 50
acre-feet, or less,
of storage, all construction will be
approved by a licensed professional engineer or by some other competent person.
(5) 5. Those requesting the
authority will insure ensure that the flow below the
impoundment is equal to:
(a) a. At least the average flow
when the flow immediately above the impounding structure is greater than the
average flow,; or
(b) b. At least the flow
immediately above the impounding structure when that flow is equal to or less
than the average flow.
(6) 6. If needed, provision will be
made in the impounding structure for an adequate spillway and for means of
releasing water to maintain the required flow downstream.
(7) 7. If for the purposes of
irrigation, the quantity of water stored (, exclusive of foreseeable
losses),
will not exceed that required for a period of
twelve 12
months to irrigate the cleared acreage owned by those participating in the
undertaking and lying in the watershed of the stream from which the water is
taken.
(8) 8. All structures and equipment
incident to such impoundment will be maintained in safe and serviceable
condition by the owners and all parts thereof in a watercourse will be removed
when no longer required for the purpose.
(9) 9. Priority to the right to
store floodwaters, as outlined, will go to upstream riparian owners.
(10) 10. Those impounding
floodwaters will, upon request, provide appropriate information concerning the
impoundment to the State Water Control
Board.
(11) 11. The plans for an impounding
structure as defined in §10.1-604 have the approval of the State Water
Control Board and conform to the rules and regulations
promulgated by the Board.
§62.1-107. Application for leave to store floodwaters; notice to interested persons and to Board.
Any riparian owner, or riparian owners, desiring to store
floodwaters under the conditions specified in §62.1-106 may apply for leave so to do so
to the circuit court of the county or city wherein the impounding structure is
proposed to be built. Such application shall be made by petition filed in the
clerk's office of the court. It shall set forth the name and address of the
riparian owner, or owners, the purpose of the proposed impoundment, the desired
storage capacity and the basis on which determined, the stream and the point on
it from which floodwaters are proposed to be taken, the estimated cost of the
project, and an agreement to abide by the provisions of §62.1-106. It shall be
accompanied by a plat or sketch of the riparian property which
he or they own owned by the petitioner
and on which is shown the site of the impounding structure and the area to be
flooded by the impounded water. The plat or sketch shall include data
sufficient to permit the location of the property on the official highway map
of the county or a map of the city or town where appropriate. It shall also be
accompanied by a plan of the proposed impounding structure on which appears the
approval of the plan by a registered civil engineer or registered agricultural
engineer, (or other competent person for
storage capacities of fifty 50 acre-feet or less),
and agreement thereto by the riparian owner. All interested persons shall be
given notice of such application by publication in accordance with §§8.01-316
and 8.01-317. A copy of the petition, together with a copy of the plat and a
copy of the plan, shall be sent by registered mail to the State Water
Control Board.
§62.1-111. When leave not granted; terms and conditions; appeals.
If, on
the report and other evidence, it
appears to the court that by granting such leave other riparian owners will be
injured, or there are other justifiable reasons for denying the petition, the
leave shall not be granted;, provided that in no case
shall leave be granted if the certified statement from the State Water
Control Board filed under §62.1-109 shows that, in the opinion of such Board, the reduction of pollution
will be impaired or made more difficult. If it be granted, the court shall
place the applicant under such terms and conditions as shall
seem to it right determined by the court.
An appeal shall lie to the Court of Appeals.
§62.1-218. Grants to local governments.
The Authority shall have the power and authority, with any
funds of the Authority available for this purpose, to make grants to local
governments. In determining which local governments are to receive grants, the
Department of Environmental Quality, the Department of Health, the Department
of Housing and Community Development, and the Virginia
Waste Management Board of
Environmental Resources shall assist the Authority in
determining needs for wastewater treatment facilities; water supply facilities;
solid waste treatment, disposal, or management facilities; housing, including
housing for persons and families of low and moderate income; or recycling facilities,
and the method and form of such grants.
§62.1-224. Definitions.
As used in this chapter, unless the
context requires a different meaning
clearly appears from the context:
"Authority" means the Virginia Resources Authority created
in Chapter 21 (§62.1-197 et seq.) of Title 62.1.
"Board" means the State Water
Control Board of Environmental Resources.
"Cost," as applied to any project financed under the
provisions of this chapter, means the total of all costs incurred as reasonable
and necessary for carrying out all works and undertakings necessary or incident
to the accomplishment of any project. It includes, without limitation, all
necessary developmental, planning,
and feasibility studies, surveys, plans,
and specifications, architectural, engineering, financial, legal, or other special services,
the cost of acquisition of land and any buildings and improvements thereon,
including the discharge of any obligations of the sellers of such land,
buildings, or improvements, site preparation
and development, including demolition or removal of existing structures,
construction and reconstruction, labor, materials, machinery, and equipment, the reasonable
costs of financing incurred in the course of the development of the project, carrying
charges incurred before placing the project in service, interest on funds
borrowed to finance the project to a date subsequent to the estimated date the
project is to be placed in service, necessary expenses incurred in connection
with placing the project in service, the funding of accounts and reserves which that
the Authority may require,
and the cost of other items which that the Authority determines
to be reasonable and necessary.
"Fund" means the Virginia Water Facilities Revolving Fund created by this chapter.
"Local government" means any county, city, town,
municipal corporation, authority, district, commission,
or political subdivision created by the General Assembly or pursuant to the
Constitution or laws of the Commonwealth or any combination of any two or more
of the foregoing. The term "local "Local government"
includes any authority, commission, district, sanitary board, or governmental entity
issuing bonds on behalf of an authority, commission, district, or sanitary board of an
adjoining state that operates a wastewater treatment facility located in
Virginia.
"Other entities" means owners of private wastewater treatment facilities.
"Project" means any small water facility project as
defined in §62.1-229 and any wastewater treatment facility located or to be
located in the Commonwealth, all or part of which facility serves the citizens
of the Commonwealth. The term "Project" includes,
without limitation, sewage and wastewater (, including surface and ground
water),
collection, treatment, and
disposal facilities; drainage facilities and projects; related office,
administrative, storage, maintenance,
and laboratory facilities; and interests in land related thereto.
§62.1-234. Creation and management of Fund.
A. There shall be set apart as a permanent and perpetual fund,
to be known as the "Virginia
Water Supply Revolving Fund,"
sums appropriated to the Fund by the General Assembly, all receipts by the Fund
from loans made by it to local governments or other entities, all income from
the investment of moneys held in the Fund, and any other sums designated for
deposit to the Fund from any source public or private. The Fund shall be
administered and managed by the Authority as prescribed in this chapter,
subject to the right of the Board, following consultation with the Authority,
to direct the distribution of loans, loan subsidies (, including principal
forgiveness), or grants from the Fund to
particular local governments or other entities and to establish the interest
rates and repayment terms and those public health conditions deemed necessary
by the Board of such loans, loan subsidies or grants as provided in this
chapter. In order to carry out the administration and management of the Fund,
the Authority is granted the power to employ officers, employees, agents,
advisers and consultants, including, without limitation, attorneys, financial
advisers, engineers and other technical advisers and public accountants and,
the provisions of any other law to the contrary notwithstanding, to determine their
duties and compensation without the approval of any other agency or
instrumentality. However, the Authority shall adopt policies and procedures
that minimize the costs of professional services associated with the processing
of a loan application and the financing or refinancing of a project, especially
in those instances in which the Board has identified the applicant as
"disadvantaged."
The Board shall reimburse the Authority for its reasonable costs and expenses incurred in the administration and management of the Fund, and the Board may disburse a reasonable fee, to be approved by the Board, for the Authority's management services. The Board may require status reports on the Fund from the Authority.
B. The Board may enter into a memorandum of understanding or
interagency agreement with the State Water Control
Board of Environmental Resources to
manage aspects of the Fund, which may include (i) reviewing assistance
applications and project bid documents, (ii) monitoring projects, and (iii)
ensuring compliance with environmental review and other program requirements.
Any memorandum of understanding or interagency agreement shall be approved by
the United States U.S. Environmental Protection
Agency.
§62.1-241.1. Definitions.
As used in this chapter, unless the
context requires a different meaning
clearly appears from the context:
"Authority" means the Virginia Resources Authority
created in Chapter 21 (§62.1-197 et seq.) of
this title.
"Board" means the Virginia
Waste Management Board of
Environmental Resources.
"Cost," as applied to any project financed under the
provisions of this chapter, means the total of all costs incurred by the local
government as reasonable and necessary for carrying out all works and
undertakings necessary or incident to the accomplishment of any project. It
includes, without limitation, all necessary developmental, planning, and feasibility studies,
surveys, plans,
and specifications; architectural, engineering, financial, legal, or other special services;
the cost of acquisition of land and any buildings and improvements thereon,
including the discharge of any obligations of the sellers of such land,
buildings, or improvements; site
preparation and development, including demolition or removal of existing
structures; construction and reconstruction; labor, materials, machinery, and equipment; the reasonable
costs of financing incurred by the local government in the course of the
development of the project; carrying charges incurred before placing the project
in service; interest on funds borrowed to finance the project to a date
subsequent to the estimated date the project is to be placed in service;
necessary expenses incurred in connection with placing the project in service;
the funding of accounts and reserves which that the Authority may
require; and the cost of other items which that the Authority determines
to be reasonable and necessary.
"Fund" means the Virginia Solid Waste or Recycling Revolving Fund created by this chapter.
"Local government" means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly or pursuant to the Constitution or laws of the Commonwealth or any combination of any two or more of the foregoing.
"Project" means any solid waste management facility as defined in §10.1-1400 or a recycling facility for materials identified in a plan adopted pursuant to §10.1-1411 or both.
§62.1-241.12. Combined Sewer Overflow Matching Fund; purposes.
There is hereby established the Combined Sewer Overflow
Matching Fund ("Fund") (the Fund) to match federal
money for purposes of providing grants to localities for CSO projects. The Fund
shall be established out of the sums appropriated from time to time by the General
Assembly for the purpose of matching federal funds allocated to Virginia for
CSO controls. The Fund, and all income from the investment of moneys held in
the Fund and any other sums designated for deposit to the Fund from any source,
public or private, shall be set apart as a permanent and perpetual fund,
subject to liquidation only upon the solution of Virginia's combined sewer
overflow problems, as may be determined by the General Assembly. The Fund shall
be administered and managed by the Virginia Resources Authority, subject to the
right of the State Water Control Board of Environmental Resources,
following consultation with the Authority, to direct the distribution of grants
from the Fund to particular local governments. The State Water
Control Board of Environmental Resources
may establish such terms and conditions on any grant as it deems appropriate,
and grants shall be disbursed from the Fund by the Virginia Resources Authority
in accordance with the written direction of the State Water
Control Board of Environmental Resources.
§62.1-242. Definitions.
As used in this chapter, unless the context requires otherwise a
different meaning:
"Beneficial use" means both instream and offstream
uses. Instream beneficial uses include but are not limited to protection of
fish and wildlife habitat, maintenance of waste assimilation, recreation,
navigation, and cultural and aesthetic values. Offstream beneficial uses
include but are not limited to domestic (, including public water supply), agricultural, electric power
generation, commercial, and industrial uses. Domestic and other existing
beneficial uses shall be considered the highest priority beneficial uses.
"Board" means the State Water
Control Board of Environmental Resources.
However, when used outside the context of the promulgation of regulations,
including regulations to establish general permits, pursuant to this chapter,
"Board" means the Department of Environmental Quality.
"Nonconsumptive use" means the use of water withdrawn from a stream in such a manner that it is returned to the stream without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.
"Surface water withdrawal permit" means a document issued by the Board evidencing the right to withdraw surface water.
"Surface water management area" means a geographically defined surface water area in which the Board has deemed the levels or supply of surface water to be potentially adverse to public welfare, health and safety.
"Surface water" means any water in the Commonwealth, except ground water, as defined in §62.1-255.
§62.1-243. Withdrawals for which surface water withdrawal permit not required.
A. No surface water withdrawal permit shall be required for
(i) any nonconsumptive use, (ii) any water withdrawal of less than 300,000
gallons in any single month, (iii) any water withdrawal from a farm pond
collecting diffuse surface water and not situated on a perennial stream as
defined in the United States Geological Survey 7.5-minute series topographic
maps, (iv) any withdrawal in any area which that has not been declared a
surface water management area, or (v) any withdrawal from a wastewater
treatment system permitted by the State Water Control
Board of Environmental Resources or
the Department of Energy.
B. No political subdivision or investor-owned water company permitted by the Department of Health shall be required to obtain a surface water withdrawal permit for:
1. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.
2. Any withdrawal not in existence on July 1, 1989, if the
person proposing to make the withdrawal has received a §401 certification from
the State Water Control Board of Environmental Resources
pursuant to the requirements of the federal
Clean Water Act, 33 U.S.C. §1251 et
seq. to install any necessary withdrawal structures and
make such withdrawal; however, a permit shall be required in any surface water
management area before any such withdrawal is increased beyond the amount
authorized by the said certification.
3. Any withdrawal in existence on July 1, 1989, from an instream impoundment of water used for public water supply purposes; however, during periods when permit conditions in a surface water management area are in force under regulations adopted by the Board pursuant to §62.1-249, and when the rate of flow of natural surface water into the impoundment is equal to or less than the average flow of natural surface water at that location, the Board may require the release of water from the impoundment at a rate not exceeding the existing rate of flow of natural surface water into the impoundment.
Withdrawals by a political subdivision or investor-owned water
company permitted by the Department of Health shall be affected by subdivision
3 of subsection B only at the
option of that political subdivision or investor-owned water company.
To qualify for any exemption in this
subsection B of this section,
the political subdivision making the withdrawal, or the political subdivision
served by an authority making the withdrawal, shall have instituted a water
conservation program approved by the Board which that includes: (i) use of water saving
plumbing fixtures in new and renovated plumbing as provided under the Uniform
Statewide Building Code; (ii) a water loss reduction program; (iii) a water use
education program; and (iv) ordinances prohibiting waste of water generally and
providing for mandatory water use restrictions, with penalties, during water
shortage emergencies. The Board shall review all such water conservation
programs to ensure compliance with clauses
(i) through (iv) of this paragraph.
C. No existing beneficial consumptive user shall be required to obtain a surface water withdrawal permit for:
1. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.
2. Any withdrawal not in existence on July 1, 1989, if the
person proposing to make the withdrawal has received a §401 certification from
the State Water Control Board of Environmental Resources
pursuant to the requirements of the federal
Clean Water Act, 33 U.S.C. §1251 et
seq., to install any necessary withdrawal structures and
make such withdrawal; however, a permit shall be required in any surface water
management area before any such withdrawal is increased beyond the amount
authorized by the said certification.
To qualify for either exemption in this
subsection C of this section, the
beneficial consumptive user shall have instituted a water management program
approved by the Board which that includes: (i) use of water-saving
plumbing; (ii) a water loss reduction program; (iii) a water use education
program; and (iv) mandatory reductions during water shortage emergencies.
However, these reductions shall be on an equitable basis with other uses
exempted under subsection B of this section.
The Board shall review all such water management programs to ensure compliance
with clauses (i) through (iv) of this paragraph.
D. The Board shall issue certificates for any withdrawals
exempted pursuant to subsections B and C of this section.
Such certificates shall include conservation or management programs as
conditions thereof.
§62.1-255. Definitions.
As used in this chapter, unless the context requires otherwise a
different meaning:
"Agricultural irrigation" means irrigation that is used to support any operation devoted to the bona fide production of crops, animals, or fowl, including the production of fruits and vegetables of any kind; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silvicultural activity.
"Beneficial use" includes domestic (, including
public water supply),
agricultural, commercial, and industrial uses.
"Board" means the State Water
Control Board of Environmental Resources.
However, when used outside the context of the promulgation of regulations,
including regulations to establish general permits, pursuant to this chapter,
"Board" means the Department of Environmental Quality.
"Department" means the Department of Environmental Quality.
"Eastern Shore Groundwater Management Area" means the ground water management area declared by the Board encompassing the Counties of Accomack and Northampton.
"Ground water" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir, or other body of surface water wholly or partially within the boundaries of the Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates, or otherwise occurs.
"Ground water withdrawal permit" means a certificate issued by the Board permitting the withdrawal of a specified quantity of ground water in a ground water management area.
"Irrigation" means the controlled application of water through man-made systems to supply water requirements not satisfied by rainfall to assist in the growing or maintenance of vegetative growth.
"Nonagricultural irrigation" means all irrigation other than agricultural irrigation.
"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of the Commonwealth or any other state or country.
"Surficial aquifer" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.
§62.1-273. Committee duties and functions.
A. The Committee shall be responsible for ensuring that the SWIFT Project, including its effect on the Potomac Aquifer, is monitored independently.
B. The Committee shall periodically, but not less than every five years, obtain an evaluation of the work of the Potomac Aquifer Recharge Monitoring Laboratory by an independent panel of national experts convened under the auspices of the National Water Research Institute or a similar organization. The evaluation shall address (i) monitoring parameter selection procedures; (ii) analytical methods and screening techniques; (iii) monitoring locations, frequency, results, and interpretation; (iv) modeling activities; and (v) research activities.
C. Additional related activities of the Committee may include:
1. Ensuring that a monitoring program is developed and implemented for monitoring water quality, geological, aquifer pressure, land subsidence, and other SWIFT Project-related impacts;
2. Ensuring independent review of data concerning the quality of the final water produced by the SWIFT Project and upstream process control testing conducted by HRSD in the course of operating the SWIFT Project;
3. Ensuring that a continuous record of monitoring data is maintained and available;
4. Ensuring that projections are made of the effects of the SWIFT Project;
5. Ensuring that the Laboratory operations are separate, distinct, and independent from operations by HRSD;
6. Ensuring that research or modeling on aquifer science, managed aquifer recharge, water reuse treatment, wastewater treatment, and advanced treatment technology is conducted and coordinated with the appropriate stakeholders;
7. Ensuring that data on the status and performance of the SWIFT Project and on any changes in the condition of the aquifer due to the SWIFT Project are synthesized, reported, and submitted at least once a year to the relevant regulatory agencies and made available to localities, water authorities, the general public, and other stakeholders within the Eastern Virginia Groundwater Management Area;
8. Serving as a liaison with stakeholders in the Eastern Virginia Groundwater Management Area;
9. Ensuring that informational material related to the SWIFT Project is readily available to the public;
10. Ensuring that the Laboratory is established to fulfill the above responsibilities;
11. In the event that the Committee finds there to be, related
to the SWIFT Project, an imminent danger to the environment, a public water
supply, or public health, welfare, or safety, referring such matter to the State Water Control Board Department of Environmental Quality
for the potential issuance of an emergency order to cease injection or make
changes pursuant to subdivisions (8a) and (8b) of §62.1-44.15 or to the
Virginia Department of Health for the potential issuance of an emergency order
to cease injection or make changes pursuant to §32.1-13 or 32.1-175; and
12. In the event that the Committee finds that SWIFT Project water does not meet HRSD standards for tasting events, directing HRSD to discontinue its use of SWIFT Project water in water tasting demonstrations or limited demonstration-scale promotional products.
D. The Committee may establish an advisory council to provide scientific and technical expertise in fields including aquifer science, managed aquifer recharge, wastewater treatment, advanced water treatment technology, water reuse, geology, geochemistry, hydrogeology, and related fields. The Committee may direct the advisory council to synthesize technical information for the Committee, provide recommendations related to monitoring SWIFT Project impacts, and provide other advice and support.
E. The authority granted to the Committee pursuant to this
section shall not be construed to prohibit or limit the Department, the State Water Control Board of Environmental Resources, or
the State Health Commissioner from taking any lawful action related to the
SWIFT Project.
2. That §§10.1-1184, 10.1-1301 through 10.1-1305, 10.1-1401, and 62.1-44.7 of the Code of Virginia are repealed.
3. That notwithstanding the provisions of §10.1-1183.1 of the Code of Virginia, as created by this act, the Governor's initial appointments of nonlegislative citizen members to the Board of Environmental Resources shall be staggered as follows: three members for a term of four years, two members for a term of three years, two members for a term of two years, and two members for a term of one year. After the initial staggering of terms, members shall be appointed by the Governor for terms of four years in accordance with the provisions of §10.1-1183.1 of the Code of Virginia, as created by this act.
4. That the term of any person serving as a member of the State Air Pollution Control Board, State Water Control Board, or Virginia Waste Management Board prior to the effective date of this act shall expire on the effective date of this act.
